What is the engagement and may it be cancelled – UAE According to the provision of Article 17 of the Federal Law number 28/2005, Engagement is a request and
What is the engagement and may it be cancelled ?
According to the provision of Article 17 of the Federal Law number 28/2005, Engagement is a request and a pledge for marriage but it is not considered marriage. It is the step before marriage.
The engagement, reciting Al Fatiha and exchanging gifts is only a prelude to marriage and there is no obligation even if accompanied with paying dowry or a part of it. Upon this, the fiancé and fiancée can cancel the engagement. This cancellation may harm any of the two parties.
The law has specified many regulations for the engagement to eventually organize the relationship between the two parties within a fair legal and Sharia frame. This aims to enforce all the justice rules, without any oppression or exaggeration by any of the two parties.
The Provision of Article (18) of the Federal Law number 28/2005 states that:
1- Any of the parties may renounce to his engagement and if a prejudice is sustained as a result of an unjustified renouncement, the aggrieved party may claim damages for the prejudice sustained. The person causing renunciation shall be treated as the one who renounces.
This means that if a party gets harmed because of this cancellation, the aggrieved party, whether financial or moral harm, is entitled to compensation for this harm because the engagement cancellation should not be accompanied with prejudice.
2- The party who renounces to the engagement or dies may recoup the dowry paid in kind or, if it cannot be restituted as such, its equivalent at the date of payment.
As the dowry is entitled to the woman by way of marriage only, if the cancellation occurs before marriage and the fiancé has paid a dowry, he can recover it back.
3- Where the engaged woman purchases a trousseau for the total or part of the dowry then the engaged man renounces to his engagement, she will have a choice either to restitute the dowry or hand over its equivalent of the trousseau at the time of purchase.
This clause deals with the situation when the fiancée purchases her trousseau from the dowry paid by the fiancé. If the cancellation is made by the fiancé, she can choose whether to return the dowry or to give him its equivalent from the trousseau at time of purchase. If the cancellation is made by the fiancée, she has to return the dowry or its alternate.
4- Shall be considered among the dowry, gifts that are considered customarily as part thereof.
The dowry may not be paid as a total amount. There are gifts given to the fiancée and they are considered from the dowry by means of custom. This kind of gift is called “Dhahba” in the United Arab Emirates and “Shabka” in Egypt. These gifts are considered part of the dowry.
5- In case any of the parties unjustifiably renounces to the engagement, and in the absence of a condition or custom, he shall not be entitled to recover any of the gifts offered by him and the other party may recoup what he has offered.
This clause deals with the exchanged gifts between the fiancé and the fiancée during the engagement period. If a party decides to cancel the engagement without a right or justification, he/ she has to return the gifts of the other party or their value, he/ she is not entitled to recover his gifts, but all this is based on non-existence of a condition or custom requires the contrary.
6- Where the renunciation is justified, the renouncing party may recover what he has offered, if it still exists, or its amount at the date of payment, if it has perished or is consummated, but the other party may recoup nothing.
If the cancellation is justified, the renouncing party is entitled to recover his gifts, if exist, or to recover their value at time of payment. The other party may not recover his gifts.
7- In case the engagement is terminated by mutual renunciation of the parties, each one of them is entitled to recover what he offered, if still existing.
This means that if the engagement is cancelled by the two parties, each party shall recover his gifts from the other party.
8- Where the engagement is terminated because of death or for a reason not attributed to any of the parties, or because of an impediment to marriage, the gifts offered may not be restituted.
In case the engagement ends with death of the fiancé or the fiancée or for a reason beyond their intention or for an impediment forbids the marriage, none of them is entitled to recover any gifts.
It is clear from the text that law has mentioned the different cases of ending the engagement. It has mentioned as well the legal applicable effect for such cases.
Mohamed Mahmoud Al Marzooqi law firm
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE