Almarzooqi v Salih
[2021] NZCA 330
•23 July 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA544/2020 [2021] NZCA 330 |
| BETWEEN | RAHLA HUSSEIN AMIN HARDER ALMARZOOQI |
| AND | RAFID MOHAMMED SALIH |
| Hearing: | 18 March 2021 |
Court: | Clifford, Brewer and Dunningham JJ |
Counsel: | M Freeman and F A Manning for Appellant |
Judgment: | 23 July 2021 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B We make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
The appellant, Rahla Almarzooqi, commenced proceedings in the High Court to require the respondent, Rafid Salih, to pay her a marriage dowry by way of (i) enforcement at common law of a judgment of the Personal Matters Court in Dubai (the Dubai court) and (ii) a claim for damages for breach of their Sharia law marriage contract. The common law enforcement application was dealt with first.
In the High Court, Associate Judge Johnston declined that application because he considered the Dubai court did not, as a matter of New Zealand law, have jurisdiction in that matter over Mr Salih.[1]
[1]Almarzooqi v Salih [2020] NZHC 2441 [Substantive decision].
Ms Almarzooqi now appeals.
Background
Ms Almarzooqi and Mr Salih met on an Islamic online dating site in 2010 when Ms Almarzooqi was living in Australia and Mr Salih was living in New Zealand. In 2013, after Ms Almarzooqi visited Mr Salih in New Zealand, they formed a relationship. They were married in Dubai in accordance with Islamic/Sharia law on 26 December 2013. Their contract of marriage (the Nikah), solemnised by an order of the Dubai court, provided amongst other things that Mr Salih would pay Ms Almarzooqi a “prompt dowry” of 30,000 dirhams (approximately $12,725) at the commencement of the marriage and a “deferred dowry” (the Mahr) of 500,000 dirhams (approximately $212,095) on the earlier of their divorce or his death.
In May 2014 Ms Almarzooqi and Mr Salih, who were by that time living together in New Zealand, separated. In December 2015 Ms Almarzooqi returned to Dubai to apply for a divorce. Ms Almarzooqi’s divorce proceedings were properly served on Mr Salih in New Zealand. Mr Salih endeavoured to file papers in the Dubai court. Those papers were not accepted. Mr Salih was told either he had to appear personally, or through a lawyer. Mr Salih was not prepared to adopt either of those courses.
Ms Almarzooqi’s divorce application was granted by the Dubai court on 1 November 2016 in Mr Salih’s absence. At the same time as granting that application, the Dubai court ordered Mr Salih to pay the Mahr, together with 3,000 dirhams for “alimony support” and 7,500 dirhams for “housing support” (the Dubai judgment).
Both Ms Almarzooqi and Mr Salih currently live in New Zealand. Ms Almarzooqi is a citizen of the United Arab Emirates and has residency status in New Zealand. Mr Salih is an Iranian and New Zealand citizen.
A copy of the Dubai judgment was served in New Zealand on Mr Salih on 29 June 2017. Ms Almarzooqi then commenced her proceedings in the High Court.
The High Court proceedings
Overview
By the time Associate Judge Johnston had considered, and declined, Ms Almarzooqi’s common law application, he had already issued a judgment declining Mr Salih’s application for security for costs in the proceedings as a whole.[2] To understand the basis of the challenged substantive decision, and the way the parties approached this appeal, it is helpful to understand certain aspects of that earlier decision.
The security for costs decision
[2]Almarzooqi v Salih [2020] NZHC 1049, [2020] NZFLR 251 [Security for costs decision].
As Ms Almarzooqi was legally aided, Mr Salih’s application faced considerable difficulties.[3] Notwithstanding, the Associate Judge dealt with it comprehensively. At the forefront of Mr Salih’s submissions was his assertion that Ms Almarzooqi’s claim faced a hurdle, that of jurisdiction, it could not overcome.
[3]At [13].
The relevant principles applying to that claim were not in dispute. As threshold issues the Court had to be satisfied of three things:[4]
(a)the Dubai court had jurisdiction;
(b)the Dubai judgment was for a liquidated sum; and
(c)the Dubai judgment was final and conclusive.
[4]At [29].
Mr Salih did not assert that the second and third matters were problematic. But he argued Ms Almarzooqi could not satisfy the first of those requirements, relating to jurisdiction.[5] In doing so he pointed to the following passage from the decision of this Court in Von Wyl v Engeler:[6]
With various exceptions and qualifications a foreign judgment in personam[7] given by the Court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 36 to 39 (of Dicey and Morris), which is not impeachable under Rules 42 to 45, is enforceable by action in New Zealand … The foreign Court must have had jurisdiction as determined by the New Zealand rules of conflict of laws, rather than according to the foreign Courts own law … Jurisdiction in personam exists where the debtor was present in the foreign country at the time that the proceedings were instituted; or where the judgment debtor was plaintiff or counterclaimed in the foreign Court; or where, being defendant in the foreign Court, submitted to the jurisdiction of that Court by voluntarily appearing in the proceedings: or before the commencement of the proceedings agreed in respect of the subject‑matter of the proceedings to submit to the jurisdiction of that Court or of the Courts of that country … and an agreement to submit may take the form of an agreement to accept service at a designated address…
[5]At [30].
[6]Von Wyl v Engeler [1998] 3 NZLR 416 (CA) at 420–421 (emphasis added).
[7]An action in personam involves determining the personal rights and obligations of the parties in the subject-matter of the action, with the effect of a judgment being to bind the parties to them (for example, an action for breach of contract). By contrast, an action in rem involves a court determining the rights of the parties, not just between themselves, but also as against all other persons dealing with them.
The Associate Judge recorded there was no suggestion that jurisdiction could be established either by reference to Mr Salih’s presence in Dubai or to Mr Salih having been plaintiff or counterclaimant.[8] The Associate Judge then rejected the two propositions Ms Almarzooqi had relied on to assert, in terms of the third possible way of establishing jurisdiction, that Mr Salih had submitted to the jurisdiction of the Dubai court:
(a)First, the preamble of the marriage contract acknowledging its formation under Sharia law was not, as Ms Almarzooqi argued, a submission to jurisdiction. Rather it was a description of the jurisdiction of the Dubai court when solemnising the marriage, and went no further than that.[9]
(b)Secondly, Mr Salih’s unsuccessful attempt to file in the Dubai court, through an agent, a memorandum recording he did not oppose Ms Almarzooqi’s application for divorce, but rather disputed the grounds on which it was sought (domestic abuse by him of her) also did not constitute a submission.[10] As the Associate Judge put it:
[39] It would be ironic if, having been prevented from submitting to the jurisdiction, Mr Salih was deemed to have done so by the very actions that were thwarted by the rejection of his documentation.
[8]Security for costs decision, above n 2, at [32].
[9]At [34]–[35].
[10]At [36]–[38].
On those bases, the Associate Judge concluded, for the purposes of the security for costs application, that there was a real question whether Ms Almarzooqi could succeed in her common law claim for enforcement.[11] Ultimately, although it is of no relevance here, he declined Mr Salih’s application, principally by reference to Ms Almarzooqi’s status as being in receipt of legal aid.[12]
The substantive decision
[11]At [41].
[12]At [75].
Against that background Ms Almarzooqi changed tack somewhat when arguing her substantive common law application, at least in terms of counsel’s written submissions, to which we were specifically referred on background issues when this appeal was argued before us.
She again argued that as a matter of New Zealand law the Dubai court did have jurisdiction. But she did not base that assertion on the parties’ choice of law in the marriage contract nor on Mr Salih’s unsuccessful attempt to file his memorandum. Rather, she asserted, the marriage contract was clear that Sharia law was to apply.
The general principle, she said, was that a New Zealand court would recognise the jurisdiction of a foreign court over a non-resident, if that New Zealand court would itself assume jurisdiction over a non-resident of New Zealand in similar circumstances. By way of analogy, Ms Almarzooqi pointed to rr 6.27 and 6.29 of the High Court Rules 2016, which provide that a New Zealand court would assume jurisdiction over an overseas defendant where a contract sought to be enforced (or for the breach of which damages or other relief was demanded in the proceedings) was made or entered into in New Zealand, or was by its terms or by implication to be governed by New Zealand law.[13]
[13]High Court Rules 2016, r 6.27(2)(b).
Here, Ms Almarzooqi was enforcing a contract entered into by Mr Salih in Dubai which by its terms was to be governed by Dubai law. Accordingly, by analogy, New Zealand law would accept the Dubai court had jurisdiction.
But, and this was the more significant change in tack, in any event that in personam jurisdiction argument was a red herring because:[14]
(a)dissolution of the marriage was manifestly within the jurisdiction of the Dubai court as an action in rem, as Dicey, Morris & Collins and s 44 of the Family Proceedings Act 1980 recognise;[15] and
(b)the obligation to pay the dowry (the Mahr) was an integral part of the marriage contract (the Nikah) so that the status of that obligation was not “separable or severable” from the marriage contract, and therefore the jurisdiction issue was governed by the principles applying to in rem proceedings.
[14]Substantive decision, above n 1, at [30]–[35].
[15]Lord Collins of Mapesbury (ed) Dicey, Morris & Collins On The Conflict of Laws (15th ed, Sweet & Maxwell, London, 2012) at 11–002.
As he had done in his earlier security for costs judgment, the Associate Judge first concluded the Dubai court did not have jurisdiction either because the marriage contract was governed by Sharia law or because Mr Salih had sought to file documentation which had been rejected.[16]
[16]Substantive decision, above n 1, at [25]–[27].
The Associate Judge then went on to consider, but reject, the argument the Dubai court had jurisdiction because the proceeding commenced by Ms Almarzooqi for it to bring the marriage to an end and enforce the payment of the Mahr was an action in rem and not in personam. In reaching that conclusion the Associate Judge said that, to the extent the Dubai judgment addressed the status of the marriage and brought it to an end, it was a judgment in rem.[17] Accordingly, Mr Salih could not challenge its jurisdiction to do so. Rejecting Ms Almarzooqi’s argument that enforcement of the Mahr could not be “separated or severable” from that question of status, the Associate Judge found the in personam principles, which he had earlier applied in his decision on security for costs, again meant the Dubai court lacked jurisdiction over Mr Salih as regards enforcement of the Mahr. He concluded:
[40] In my judgement, Ms Almarzooqi cannot establish on the evidence currently before the Court that the UAE court had jurisdiction — in the particular sense necessary in relation to foreign judgments in personam — to make the ancillary money orders it made in her favour against Mr Salih in this case.
[17]At [36].
Finally, the Associate Judge considered Mr Salih’s arguments that, if the Dubai court had had jurisdiction, its judgment would nevertheless be unenforceable as having been obtained in breach of natural justice, by fraud and because its enforcement would be against public policy. The Associate Judge did not accept those arguments.[18] In particular, he considered service of the proceedings on Mr Salih satisfied the requirements of natural justice and there were no public policy reasons to prevent enforcement. On that point, he observed:
[62] New Zealand courts have not yet — as far as I am aware — enforced a foreign judgment such as this concerning Islamic traditions around marriage and divorce. However, the English courts certainly have, and I can see no reason why New Zealand courts would not enforce such a judgment. New Zealand places a high value on cultural and religious autonomy. Recognising and enforcing a judgment such as this would reflect this commitment.
(Footnote omitted.)
[18]At [54], [60] and [62].
Thus, if he had found the Dubai court had had jurisdiction, the Associate Judge would have granted Ms Almarzooqi’s common law application for enforcement of the Dubai judgment requiring Mr Salih to pay Ms Almarzooqi the contracted dowry.[19]
This appeal
[19]At [63].
For Ms Almarzooqi, Mr Freeman submitted the Associate Judge had erred in two ways.
First, the authorities (Pattni v Ali[20] and B v Attorney-General[21]) the Associate Judge relied on did not go so far as to support his conclusion that, whilst Ms Almarzooqi’s proceeding for divorce was one in rem, her claim for the enforcement of the Mahr was against Mr Salih personally (that is, in personam). Pattni v Ali only established a court might have an in personam jurisdiction to order specific performance (to require a person to transfer certain shares), even though it did not have jurisdiction as regards orders in rem (relating to those shares). B v Attorney‑General was simply not relevant.
[20]Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85.
[21]B v Attorney-General [1965] P 278.
Here, the relevant principles of international law did not support the Associate Judge’s conclusion: rather, the enforcement of the marriage contract as regards as the Mahr was an action in rem and jurisdiction existed accordingly.
Secondly, even if the action to recover the Mahr was properly categorised as being one in personam, the Associate Judge had misunderstood the applicable principles on the issue of jurisdiction. In doing so he had not addressed the argument Mr Freeman had made in the High Court based on the analogous application of rr 6.27 and 6.29 of the High Court Rules.
On that issue, Mr Freeman submitted that the New Zealand courts have taken a more liberal approach than the English courts. That needed to be borne in mind when considering English authority, and in particular, Dicey, Morris & Collins. The New Zealand approach was reflected in the High Court Rules relating to the service of New Zealand proceedings outside New Zealand. As before, applying rr 6.27 and 6.29 analogously the High Court should have recognised the Dubai court had jurisdiction.
For Mr Salih, Mr Smith supported and adopted the Judge’s reasoning.
Analysis
It is convenient to address the question of the in personam jurisdiction of the Dubai court first, then that of whether the Dubai judgment to enforce the Mahr was one in rem, with the Dubai court having jurisdiction accordingly.
Jurisdiction in personam
We first address Mr Freeman’s contention the Judge had failed to address the argument he had made based on the analogous application for rr 6.27 and 6.29. As to that:
(a)For his part Mr Smith did not, as we understood his submissions, recall that argument having been made.
(b)The Associate Judge, having again cited the passage from Von Wyl v Engeler referred to already,[22] introduced his discussion of the question of jurisdiction in the following way:
[22] In my earlier judgment I rejected submissions made on behalf of Ms Almarzooqi that the UAE Court had jurisdiction because, in their agreement to marry, the parties had agreed to submit to UAE jurisdiction and that Mr Salih had voluntarily submitted to the jurisdiction of the UAE Court in this case by attempting to file documentation which was rejected.
[23] In the context of this summary judgment application Mr Freeman on Ms Almarzooqi’s behalf advanced the same contentions in addressing the issue of jurisdiction.
(c)Thereafter the Judge did not refer to the rr 6.27 and 6.29 argument.
(d)As already acknowledged, Mr Freeman’s written submissions in the High Court, as provided to us as part of the case on appeal, clearly contained that argument.
[22]See above at [12].
Accordingly, we are a little uncertain as to what did occur in the High Court. In saying that we note we had — with no disrespect to Mr Freeman — quite some difficulty in coming to grips with that argument. It may be the Associate Judge encountered the same problem. But, and having said that, the point is of no particular moment as Mr Smith did not suggest we should not ourselves address that argument. We now do so.
As a general proposition, that argument cannot succeed. New Zealand courts do not recognise the jurisdiction of a foreign court over a non-resident by reference to the principles, reflected in rr 6.27–6.29, in determining whether they have jurisdiction over a non-resident. As the authors of The Conflict of Laws in New Zealand (Hook and Wass) state:[23]
5.96 A foreign judgment will not be recognised in New Zealand unless the foreign court had jurisdiction. However, it is not sufficient that the foreign judgment had jurisdiction under its own rules;[24] the foreign court must have had jurisdiction of a kind recognised by New Zealand’s private international law rules as sufficient to give rise to an obligation to comply with the judgment that will be recognised by the New Zealand court. The point bears repeating because it is still sometimes overlooked.[25] The term “international jurisdiction” is not especially illuminating, but it is a convenient shorthand. It is generally irrelevant, for the purpose of assessing whether the foreign court had international jurisdiction, that New Zealand courts would exercise jurisdiction in the same circumstances, since judgments are not enforced on the basis of reciprocity at common law.[26]
[23]Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) (footnotes original, emphasis added).
[24]Nor is it clear whether that is necessary: in Jet Holdings Inc v Patel [1990] 1 QB 335 (CA) at 344 Staughton LJ held that the foreign court’s decision as to its own jurisdiction is “neither conclusive nor relevant”, but it is a different question whether the New Zealand court’s decision that the foreign court lacked jurisdiction under its own law would be a bar to enforcement.
[25]See, for example, Pacific Premier Bank v Asiatrust New Zealand Ltd [2018] NZHC 1762 at [19].
[26]Rubin v Eurofinance SA [2012] UKSC 46, [2013] 1 AC 236 at [126]. The Reciprocal Enforcement of Judgments Act 1934 is reciprocal in the sense that it applies to countries that have a corresponding regime for the enforcement of judgments.
In its 2012 decision, Rubin v Eurofinance SA,[27] the Supreme Court of the United Kingdom affirmed the continuing correctness of the Dicey, Morris & Collins principles found in Von Wyl v Engeler.[28]
[27]Rubin v Eurofinance SA, above n 26.
[28]Von Wyl v Engeler, above n 6.
Rubin involved the enforceability of orders made in United States and Australian liquidation proceedings by the English courts. The argument was that there was, or should be, in cross-border insolvency proceedings a principle there was one bankruptcy in which all creditors would prove. It was then asserted that, if Rubin had involved English insolvency proceedings, the English courts would have considered England was the correct jurisdiction and would have given permission to serve outside the jurisdiction (in New York). On that basis, and this is the point of relevance here, the further argument was:
(a)the English court would have expected the New York court to recognise and enforce any judgment of the English court, even if the appellants had remained in New York and had not contested the proceedings; and
(b)by the same token that the court seeks and expects the recognition and enforcement abroad of its own insolvency orders, the court should recognise and enforce in England insolvency orders made in insolvency proceedings in other jurisdictions.
That is, in effect the same general proposition — albeit expressed by reference to a different context — as Mr Freeman relied on. Lord Collins rejected that general proposition in the following way:
126 There is no basis for this line of reasoning. There is no necessary connection between the exercise of jurisdiction by the English court and its recognition of the jurisdiction of foreign courts, or its expectation of the recognition of its judgments abroad. It has frequently been said that the jurisdiction exercised under what used to be RSC Ord II, r 1 (and is now CPR Practice Direction 6B, paragraph 3.1) is an exorbitant one, in that it was a wider jurisdiction than was recognised in English law as being possessed by courts of foreign countries in the absence of a treaty providing for recognition…
He went on, however, to observe:
127 Outside the sphere of matrimonial proceedings (see Travers v Holley [1953] P 246, disapproved on this aspect in Indyka v Indyka [1969] I AC 33) reciprocity has not played a part in the recognition and enforcement of foreign judgments at common law. The English court does not concede jurisdiction in personam to a foreign court merely because the English court would, in corresponding circumstances, have power to order service out of the jurisdiction: In re Trepca Mines Ltd [1960] I WLR 1273.
Hook and Wass also acknowledge that, limited, reciprocal approach to jurisdiction in matrimonial proceedings in the following passage, which follows that referred to at [33] above:[29]
There are, however, important exceptions in the context of personal law, and it is an open question whether the courts might be prepared to extend reciprocity as a basis of recognition in other situations.[30]
[29]Hook and Wass, above n 23, at [5.96].
[30]C v C [2019] UKPC 40 (extending the principle of Travers v Holley [1953] P 246 (CA) to recognise a declaration of parentage).
So the question becomes whether, although wrong in the very general way he made his argument, Mr Freeman may be on firmer ground in the specific context of “matrimonial proceedings”. That is, if the proper characterisation of Ms Almarzooqi’s application to enforce Mr Salih’s obligation under their Sharia law marriage contract to pay Ms Almarzooqi the Mahr is that of a “matrimonial proceeding”, can the principle of “reciprocity” provide a basis for recognising the Dubai court’s jurisdiction over Mr Salih?
The limited recognition of jurisdiction on the basis of reciprocity in matrimonial proceedings overlaps what is characterised as the recognition of jurisdiction in such proceedings on the basis of in rem principle. It is helpful to discuss them together.
Reciprocal recognition of jurisdiction/jurisdiction in rem
Hook and Wass explain the conceptual basis for in personam and in rem jurisdiction, more helpfully referred to by them also as personal and subject matter jurisdiction, in the following passage:
2.32 Before a court can make an order against a party, or pronounce on a particular party’s rights and obligations, or tell a party to do something or refrain from doing something, it must have jurisdiction over that party — that is, it must have “personal jurisdiction”…
2.33 Personal jurisdiction is not required where the court has been asked to make a determination of general effect that is not also made against a particular person. Determinations of general effect are usually described as matters in rem or matters of status. The authors of Dicey, Morris and Collins on the Conflict of Laws state that “[a] claim in personam may be negatively described as any claim which is not an Admiralty claim in rem, a probate claim, or an administration claim”, and that “[i]t may be well, though hardly necessary, to add that a claim in personam does not include a proceeding for divorce or judicial separation, or for a declaration of nullity of marriage or of legitimacy, or a proceeding in bankruptcy or regarding the custody of children, or an application to set aside an arbitral award”. Occasionally the term “quasi in rem” was used to capture examples of this latter kind…
(Footnotes omitted.)
The conflict of laws rules relating to the determination or recognition of family relationships — for example, whether a couple is married or divorced — have long reflected the key concern of avoiding “limping” relationships: that is, relationships recognised in some countries but not in others.[31] Hook and Wass again are helpful:
9.4 The question whether two persons are party to a defined family relationship has traditionally been conceptualised as a question of status. Thus, the question is whether a person is “a father”, or “a child”, or a “spouse”. The concept of “status”, in turn, has been likened to a matter “in rem” for the purposes of the conflict of laws. It is territorial, in the sense that a person may have a particular status in one country but not in another; and it is conferred, and recognised as having been conferred — usually by the personal law of the parties.
[31]At [9.3].
The longstanding common law rule, laid down in Le Mesurier v Le Mesurier, was that the domicile of both spouses at the institution of proceedings was the sole test of jurisdiction in divorce cases.[32] Mr Freeman relied on the decision in Travers v Holley, referred to by Lord Collins in the passage cited above and which altered the law somewhat, in support of his submission there was now a general principle of reciprocal enforcement of in personam judgments in matrimonial matters.[33] That case was, however, authority for a much narrower proposition.
[32]Le Mesurier v Le Mesurier [1895] AC 517 (PC).
[33]Travers v Holley, above n 30.
It involved the recognition in an English court of a divorce decree granted by a New South Wales court where the wife, but not the husband, had been domiciled in New South Wales at the time of the institution of the suit. At that time, s 13 of the Matrimonial Causes Act 1937 (UK) gave English courts jurisdiction in divorce cases where a wife had been deserted by her husband who had been domiciled in England or Wales immediately before the desertion but had since changed his domicile and hence was not in the jurisdiction at the time of the institution of the wife’s divorce suit. A similar position applied in New South Wales under s 16(a) of the New South Wales Matrimonial Causes Act 1899. The common law approach remained that expressed in Le Mesurier:[34]
… [A] decree of divorce a vinculo, pronounced by a Court whose jurisdiction is solely derived from some rule of municipal law particular to its forum, cannot, when it trenches upon the interest of any other country to whose tribunals the spouses were amenable, claim extra-territorial authority.
[34]Le Mesurier v Le Mesurier, above n 32, at 528.
In Travers v Holley the majority reasoned that, as the provisions of the two matrimonial causes Acts were common, a different approach was available:[35]
Conversely, it seems that where it is found that the municipal law is not peculiar to the forum of one country, but corresponds with a law of a second country, such municipal law cannot be said to trench upon the interests of that country. I would say that where, as here, there is in substance reciprocity, it would be contrary to principle and inconsistent with comity if the courts of this country were to refuse to recognise a jurisdiction which mutatis mutandis they claim for themselves. The principle laid down and followed since the Le Mesurier case must, I think, be interpreted in the light of the legislation which has extended the power of the courts of this country in the case of persons not domiciled here.
[35]Travers v Holley, above n 33, at 257 (footnote omitted).
As can be seen, the case is not authority for the general rule Mr Freeman asserts. Moreover, the law has moved on.
In Indyka v Indyka the House of Lords revisited the general question “of the extent of the right or duty of the courts of England to recognise a foreign decree of divorce which is valid in the country where it was pronounced”.[36] Again, questions of domicile and the rule laid down in the Le Mesurier case fell to be considered.
[36]Indyka v Indyka [1969] 1 AC 33 (HL) at 54.
The appellant’s husband and his first wife, both Czech citizens, had been married in January 1938 when they were both domiciled in Czechoslovakia. The husband left Czechoslovakia to participate in the Second World War as a member of the Polish forces. He was demobilised in England and became domiciled there in 1946. In 1949 a decree of divorce valid under Czech law was granted by a Czech court. The husband, who had become aware of the divorce and regarded it as valid, in 1959 married his second wife, an English woman domiciled in England. The second wife petitioned for divorce in 1965. The husband defended that petition on the basis the Czech divorce was as a matter of English law invalid because he was, at the time of the Czech divorce, domiciled in England. Therefore, his second marriage was also as a matter of English law invalid. So the question was whether their Lordships were precluded by English law from recognising the Czech decree by the mere fact that, at the relevant time, the husband was domiciled in England. In the course of their speeches, their Lordships accepted the correctness of the outcome in Travers v Holley, but not that of the Court’s reasoning. Lord Reid summarised the position:[37]
The decision in Travers v Holley was based on reciprocity and comity. Reciprocity appears to me to mean that we should say: if you will recognise that we have this jurisdiction we will recognise you have a similar jurisdiction. I do not think that this was ever regarded as the test … Comity has never been the basis upon which we recognise or give effect to foreign judgments.
[37]At 58 (footnote omitted).
Having traversed the complex legal history of these issues, and various aspects of their social and political implications, each of the five Law Lords agreed to a limited general departure from the Le Mesurier rule. Lord Wilberforce expressed that departure in the following terms:[38]
In my opinion, it would be in accordance with the developments I have mentioned and with the trend of legislation … to recognise divorces given to wives by the courts of their residence wherever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction. I use these expressions so as to enable the courts, who must decide each case, to consider both the length and quality of the residence and to take into account such other factors as nationality which may reinforce the connection.
[38]At 105.
But, and again, the specific approach of the common law in this area, now based on that principle of substantial connection, provides no support for an approach to jurisdiction based on reciprocity.
That “substantial connection” approach is now reflected in s 44 of the Family Proceedings Act 1980:
44 Recognition of overseas orders
(1) The validity of a decree or order or legislative enactment for divorce or dissolution or nullity of marriage or civil union made (whether before or after the commencement of this Act) by a court or legislature or public authority of any country outside New Zealand shall, by virtue of this section, be recognised in all the courts of New Zealand, where—
(a)one or both of the parties were domiciled in that country at the time of the decree, order, or enactment; or
(b)that overseas court or legislature or public authority has exercised jurisdiction—
(i)in any case, on the basis of the residence of one or both of the parties to the marriage or civil union in that country, if, at the commencement of the proceedings, any such party had in fact been resident in that country for a continuous period of not less than 2 years; or
(ii)in any case, on the basis that one or both of the parties to the marriage or civil union are nationals or citizens of that country or of any sovereign State of which that country forms part; or
(iii)in any case, on the basis that the spouse or civil union partner has been deserted by his or her spouse or civil union partner, or that one spouse or civil union partner has been deported and the other spouse or partner was, immediately before the desertion or deportation, domiciled in that country; or
(iv)in any case, on the basis that the spouses or civil union partners were legally separated, whether by an order of a competent court or by agreement, and that one of the spouses or partners was, at the date of the order or agreement, domiciled in that country; or
(v)in a case of nullity of marriage or civil union on any ground existing at the time of the marriage or civil union, on the basis of the celebration of the marriage or civil union in that country; or
(c)the decree or order or enactment is recognised as valid in the courts of a country in which at least one of the parties to the marriage or civil union is domiciled.
(2) Nothing in this section shall affect the validity of a decree or order or legislative enactment for divorce or dissolution or nullity of marriage or civil union, or of a dissolution of marriage or civil union otherwise than by judicial process, that would be recognised in the courts of New Zealand otherwise than by virtue of this section.
Here, if there had been any dispute, it would appear s 44(1)(b)(ii) applies: namely that the Dubai court exercised jurisdiction on the basis that Ms Almarzooqi was a national of the UAE.
As can be seen, in terms of the traditional classification of subject matter and personal jurisdiction, s 44 is something of a hybrid, if not being particular to itself. Moreover, there is nothing to suggest that either the common law principles, or the approach in s 44, as to recognition of foreign divorce decrees apply to issues other than the status and the continued existed of the relevant marriage.
As the Dubai Court put it (as translated):
It is clear from papers that the plaintiff and the defendant are of Emirates and New Zealand nationalities. The defendant did not uphold application of his law and so the court applies the state law i.e. the law No. 28/2008 on personal matters.
Nor or do we think the Judge erred in the reliance he placed on B v Attorney‑General[39] and Pattni v Ali[40] when he refuted Mr Freeman’s argument that the order for the payment of the Mahr could not be severed from the order dissolving the marriage, so that the Dubai court’s jurisdiction over Mr Salih as regards the divorce also applied as regards the Mahr.
[39]B v Attorney-General, above n 21.
[40]Pattni v Ali, above n 20.
B v Attorney-General involved a proceeding in which an issue of legitimacy was said to be an in rem matter because of an earlier divorce decree which had implications on that issue. Wilmer LJ responded to that argument in the following terms:[41]
It is common knowledge that in practice a decree of divorce may embody orders on a number of ancillary matters, for instance, maintenance. It seems to me that it would be absurd to suppose that, because a maintenance order may be embodied in the same document as that which determines the status of the parties, it is, therefore, to be regarded as an order binding in rem.
[41]B v Attorney-General, above n 21, at 283–284.
Pattni v Ali was an appeal to the Privy Council involving a Kenyan judgment which deal with matters both in rem and in personam. It was argued the judgment as a whole was not enforceable in Kenya because it was not enforceable as regards its in rem aspects as it had not dealt with Kenyan moveable property. In rejecting that part of the argument their Lordships’ advice was:
37 … First, there is no reason why an order should be characterised as either wholly in rem or wholly in personam. It is in their Lordships’ view inappropriate to speak in this context of “severance”. The extent (if any) to which an order operates in part in rem and in part in personam is a matter of analysis, not severance.
38. Second, the argument before all the courts in this case has proceeded on the basis that, if the Kenyan order had or purported to have in rem effect, then it and the Kenyan proceedings would have to be ignored for all purposes. Their Lordships should not be taken to accept that proposition.
Accordingly, and in our view, those two decisions support the approach the Associate Judge took and the conclusions he reached.
On that basis, the Associate Judge was correct to conclude that neither of the grounds advanced by Ms Almarzooqi supported recognition by a New Zealand court of the Dubai court having jurisdiction over Mr Salih. We accordingly dismiss the appeal.
We make a final observation. Mr Freeman, in the course of his submissions, observed that it was unfortunate, in particular given the expert evidence as to the connection in Sharia law between the dissolution of the marriage and the obligation to pay the Mahr, that it would be necessary for Ms Almarzooqi to take further proceedings to enforce her Sharia law contract in New Zealand. That may well be the case. That is, however, an unavoidable consequence of the pathway chosen, namely an action on the Dubai judgment which has the requirement for jurisdiction Ms Almarzooqi was not able to satisfy.
Result
The appeal is dismissed.
As the appellant is legally aided, there is no order as to costs.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant
3
2
0