Ali v Salam HC Manukau FP092/666/01

[2002] NZHC 451

IN THE FAMILY COURT
AT MANUKAU FP092/666/01

IN THE MATTER OF THE MATRIMONIAL PROPERTY ACT 1976

BETWEEN MAHA ABD EL HALIM AHMED ABOU ALI
Applicant

AND MOHAMMED ASHRAF IBRAHIM ABD EL SALAM
Respondent

Hearing: 14 March 2002

Minute: 17 May 2002

Appearances:
Ms Y F Wu for applicant
Ms F Shah for respondent

MINUTE OF JUDGE J G ADAMS (Application to stay Relationship Property Proceedings)

Solicitors:
Yuet Fah Wu, Wynyard Wood, DX CP 24035, Auckland for applicant
Fazilat Shah, Barrister, PO Box 14-360, Panmure, Auckland for respondent

[1] The applicant has brought proceedings under the Matrimonial Property Act, which would fall to be determined under the Property (Relationships) Act. The respondent wants to stop those proceedings in their track. He claims that when they were divorced in Bahrain the Shari’ah Law applied and therefore all property issues between the parties were resolved.

[2] Although the respondent has brought this application under the head of a protest to jurisdiction, I think he is actually seeking a stay of the proceedings by reason of issue estoppel or some analagous principle.

[3] When this case was argued before me I did not appreciate the complexities that might arise. Ms Shah informed me that there were no cases in the area whereas my Research Counsel has discovered books of cases of apparent relevance to this Conflict of Laws issue.

[4] In order to properly dispose of this case I need:-

a. Some small additional pieces of evidence.

b. To have the relevant aspects of the Shari’ah Law properly introduced and explained, and

c. To hear a little further argument on the relevant points.

[5] My reflections about this case cause me to ask whether, even if it were permitted to proceed, it is likely to produce any positive outcome for the applicant wife. My current impression is that the property in New Zealand seems to be the separate property of the husband. The house he has bought seems to have been purchased from his separate funds inherited from his father. The house was purchased after the divorce. Indeed, the matrimonial property seems to have comprised the chattels and the car, all of which are in the wife’s possession, and apparently those items are not in New Zealand. There is a risk that her application may turn on her, because she may be required to divide those chattels and that car with the respondent whilst he would keep his separate property.

History

[6] The parties are both Egyptian, but were resident in Bahrain when they divorced. The husband was an anethetist; the wife was a manager for a pharmaceutical company. She had an Egyptian law degree. They applied for, and obtained, New Zealand residency. The wife was the primary applicant because her profile had more ‘points’ than that of the husband. With his knowledge and approval she claimed to have $100,000.00. They were both aware that these funds were actually his inherited property but that was immaterial because, at that time, they were a married couple with children contemplating the possibility of moving to New Zealand.

[7] Having obtained New Zealand residency they came to New Zealand for 42 days in order to secure that right of residence. They nevertheless retained their jobs in Bahrain. Upon return to Bahrain the wife insisted on a divorce. She applied to a Court in Bahrain. The Judge tried unsuccessfully to persuade her to reconsider or postpone her application. She insisted on proceeding. The husband was required to divorce her under Shari’ah Law. Had the wife applied in Egypt, the Shari’ah Law would still have applied in that country.

[8] In the short divorce hearing the husband was given custody of the three children. The wife was given a nominal payment fixed by the Judge (120 Egyptian pounds) and an airfare to Egypt.

[9] The Egyptian Court orders have been translated into English on two occasions. The translation provided for the husband ends:-

‘Neither party will have the right to file Court cases against each other in connection with custody rights or any financial rights or rights in kind whether in Egypt or outside it.’

For the husband says that.

The version provided for the wife reads:-

‘No party shall have the right to start judicial actions to claim custody, guardianship or other rights in Egypt or abroad.’

[10] Once divorced the wife returned to Egypt. She took steps to have a Peugeot car transferred from the husband’s name into her name. She already had chattels in her possession in Egypt.

[11] Although not obliged to do so, the husband paid her airfare to fly back to Bahrain so she could be near the children. He and the children then moved to New Zealand. The husband, although not obliged to do so, paid for the wife to travel to New Zealand so she could be near the children.

[12] The wife commenced these proceedings in New Zealand approximately 9 months after the divorce. She is unable to obtain any benefit for a period of time in New Zealand. That is a condition of her residency, based upon her claim that she had funds.

[13] I find that the wife was domiciled in Egypt at the time of the divorce. Although the parties had been to New Zealand, and had obtained a right of residency, they had retained their jobs in Bahrain and I do not regard either of them as having acquired a New Zealand domicile at that time.

[14] I am unclear whether the orders made upon the divorce could be said to include matrimonial property orders. It seems likely to me that the question did not arise because property rights upon divorce appear to be clear as a result of the Shari’ah Law.

[15] If there is no judgment then the question of enforcement of a foreign judgment could not arise. A judgment from Bahrain is not enforceable under the Reciprocal Enforcement of Judgments Act 1934 nor under s 56 of the Judicature Act 1908. A judgment from Bahrain could be enforced under the common law.

[16] If it amounted to a judgment, I doubt that it was a judgment in rem. It would have been a judgment in personum in my view.

[17] A foreign judgment can give rise to issue estoppel if:-

a. the Court was a Court of competent jurisdiction.

b. the judgment was final and conclusive.

c. the judgment was given on the merits of the case.

Reference is Carl Zeiss Stiffung v Rayner & Keeler Limited (No 2) [1967] 1 AC 853, 917, 925 and 967.

[18] However, it seems unlikely that the application of Shari’ah Law complies with all three of those criteria.

[19] It appears to me that both parties were aware of the application of Shari’ah Law in relation to property matters at the time of the divorce. When the wife returned to Egypt she took steps to have the car transferred into her name, apparently because she was entitled to it under Shari’ah Law. However this is a point about which I am unclear.

[20] I note that the information I have concerning Shari’ah Law was simply provided by way of submission from Ms Shah. It comes by way of a chapter from a book and an article.

[21] I make the following directions:-

(a) Within three weeks the applicant shall file an affidavit setting out

(i) What property arrangements she thought, at the time of the divorce, would apply between the parties.

(ii) Upon what legal basis she transferred the car from her husband’s name into her name after the divorce.

(iii) Upon what basis under New Zealand’s Property (Relationships) Act she expects to obtain any award in New Zealand.

(b) The respondent may file an affidavit in reply to those matters within three weeks thereafter.

(c) Ms Shah should file an affidavit from a person qualified to do so, explaining the relevant aspects of the Shari’ah Law, and discussing whether the judgment in this case is a judgment relating to matrimonial property, or whether property resolution is simply given effect pursuant to clear principles of Shari’ah Law, and whether there are cases relating to disputes in that area. It would be useful if that expert could comment whether the wife was entitled to anything more than the chattels and the car in this case under Shari’ah Law. That should be filed within six weeks from today.

(d) Ms Wu may file evidence from an expert in the Shari’ah Law by way of counter within four weeks thereafter.

(e) The matter should then be set down for further oral argument in a hearing before me for two hours.

[22] Counsel are at liberty to inspect my Research Counsel’s notes on the file although I add that they are not my notes, but I wish to be as helpful to Counsel as possible.

[23] I am aware that it is an unusual situation where a Judge requires further evidence and submissions but in my view, in this complicated case, it is necessary to do so in order that the real issues be addressed.

[24] Should there be any matter upon which Counsel are unclear, or in respect of which they wish to make any interim submissions, I invite Counsel to arrange an appointment through the Registrar to see me.