General Guidelines to be Taken into Consideration if the Court Ask Parties in Family Case to Bring W
Posted: Apr 04, 2020
The vast majority of family court cases may have recourse to witness testimony, which can be very determinative to the outcome of the case.
The type of evidence witnesses are permitted to offer to include an analysis of the relationship between the parties, including any recounted instances of physical or verbal abuse, disrespectful behaviour, financial problems or withholding, and even extends to the parenting abilities of both parents.This helps the court in evaluating the all-important question of what constitutes the best interests of the child.
In terms of who constitutes a suitable witness, if a party is a Muslim, the witness appearing should also be a Muslims, non-Muslim supposes could be allowed to bring non-Muslim witnesses. however if one of the parties is Muslim and the other one is not Muslim, then only Muslim witness might be permitted to testify. The number of witnesses should be two male witnesses or one male and two females. Witnesses are expected to deliver clear and precise information, relating to details, facts and dates of any alleged incident.
While family members are able to perform the function of a witness, parents are not able to.
A fundamental requirement of being a witness is to be impartial as a person with the conflict of interest with either of the parties is not recommended to appear as a witness.
Procedurally, witnesses for the claimant are the first to be heard, followed by those appearing for the respondent. This can be done in the same hearing, or they can ask to postpone the hearing to another date. Witnesses are heard in front of the judge and without a public audience. The male witnesses testify alone, while any female witnesses will be heard together. While witnesses may be cross-examined, the cross-examination takes place by the judge who may deliver questions from others taking part in the case. The judge will decide whether to issue the questions or not.
Prior to giving testimony, the witnesses will provide their identification document showing they are at least 21 years of age. They must then give a legal oath they are telling the truth, swearing it on a religious text. Court proceedings take place in Arabic, but legal translators are to be provided by the court for those in need.
Although, this article is drafted for the sake of providing general information and does not have to explicitly be applicable in all ongoing or exact case, yet, there are few common points and guideline which can be considered in any witness hearing, outlined as below:
1. The dispute concerns Domestic Violence:
It is expected that the court may ask the witness on the points raised in the statement of claim concerning the rationale behind filing for divorce, ergo, if the ground for filing divorce is domestic violence, the witnesses may be asked questions in such regards, for instance, if he has ever witnessed any act of violence or not or how is he/she informed about such act, when and where it happened, if it was reoccurring or was just once.
1.1. If the claim is regarding Criminal Abuse:
The witnesses might be asked regarding the location and the date of abuse and how did they know about it, and what exactly the words for abuse, why it has been said, it has been repeated or once, if someone else saw the abuse or not or any another question the court might find it necessary to see if there is a harm or not or stand on the credibility of the witness statement.
1.2. If the Claim is for lack of Financial Support:
In such circumstances, the relevant concern of the court in such hearing would be husbands income, the assets he holds (if any), if he has supported his wife in past 3 (three) years, the amount of money he spent on the family and how the witness is aware of this financial state.
1.3. If the claim is for Adulterous behaviour:
In cases of divorces filed by Adulterous or miss behaviour of the defendant, the witness could be asked the facts about the adulterous act for example the date, time and place and how is aware of such act.
1.4. If the claim is regarding harm caused due to abandonment or physical separation:
In cases of abandonment, the witness could be asked about how and when he was aware of such an act and whether the separation was on the request of the claimant or not. In accordance with the new Amendments in the Personal Status Law, if this is the sole reason for filing divorce was abandonment and such abandonment was done by the claimant act or request that could lead to hypothetically to dismissal of the case, this rule has some exception, which is better advised to be discussed with the Legal Consultant
In general it is strongly recommended that witnesses should testify on acts which were directly seen and not heard from a third party.
However, if it is not possible, it may be worth mentioning it in divorce cases. Further, the witness who hear and did not see the act may be considered only on the discretion of the court, if they believe that such harm has led to divorce and was known in the family and the community and complies with Article 122 of the Personal Status Law and its amendments.
Another significant point which may add value to witness testimony if both of them are testifying on the same or at least similar acts of the opposite party, for instance, If one of the parties is testifying on the verbal abuse and physical violence and the other witness testifying about adultery and lack of financial support, such statements could raise a question on the credibility of the witnesses.
2. The dispute concerns Child Custody or a counterclaim for custody, even if it was filed additionally with the divorce case:
In custody matters, the witnesses may be questioned about their connection with the family, basic information about the child, and how he has met the child. Importantly, the court may also ask the witness that in his experience who can better serve the interest of the child and why does he believe so and that is the most important question, so we will highlight it as follows:
Why he believes that one of the parents is the fit one to be custodian??
It is important to note that in cases if the mother is working, it does not automatically make her unfit to be a custodian of the child, unless it affects the best interest of the child, whereas on the other hand, if the father is supporting the family or the child and he is the only source of income, it does not make him eligible to claim the custody exclusively, as it is his duty anyways.
However, if the father fails to support the child financially, and the witness is aware of such fact, it might be considered as a factor to criticize his eligibility to claim custody.
Although, witnesses are permitted to say there impressions or feelings about the child or the child relationship with both parties, yet, such statements should be based on their personal experience with the child along with his parents or certain acts of the child.Importantly, such acts should be precise and clear and have a direct nexus with the childs best interest. Also, if such acts are reoccurring, it adds more weight to his statements and if it is supported by the documents it will add more value,
For example: if the witness satisfying that one of the parents is beating the child that can be proven by a medical report, it certainly adds more credibility to his statement.
The same applies if the witness statement covers facts which have been discussed in any communication between the parties or between one of the parties and the witness. Knowing that no documents shall be presented in this hearing and the court may fix a different hearing date for presenting evidence and commenting on the witness statement.
3. If the claim includes financial demands for maintenance and child support or if includes backdated expenses for previous months
The witnesses might be asked about husbands income, if he has some assets or not, if he has supported his wife financially in the last 3 years or not, how much he was spending on his family, how the witness is aware of the information provided to the court.
The above-mentioned points are just guidelines which may or may not be applied in certain cases, however, since witnesses hearing have more value in light of the new change in the law it might be helpful for any party involved in the family dispute at least be aware of it.
Most of the question, address to the witnesses are not an open-ended question so any uncertain answers may reduce the value and the weight of the witness statement. It is important to bear in mind that courts are searching for certain facts and clear answers with a Yes or No model. However, after the word yes or no, the witness may explain the reason behind his answer. Even if there are open-ended questions, it is always recommended that witness shall say their answer is very clear and certain language. And one strong statement from one witness is not enough, as in our point of view since you need to see things by both of your own eyes to make sure it is true, it is imp to show the same acts to the judge by both witnesses to convince him it is true. If one act is seen by one witness and other acts are seen by the other witness and the other witness denies that he has seen the first act, it may destroy the credibility of a witness statement. That is one most common mistake we have seen in previous cases.
In the Family Court, witnesses often play a crucial and decisive part in the proceedings. In many cases, the testimony of witnesses can lead the way to one parties success or failure in the case and his/her claims made therein. In certain cases, even if written evidence is submitted to the court if he deems fit for the purposes of delivery justice. Hence, it is fair to say that witnesses are the key to success in the Family Court.
Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.