Almarzooqi v Salih - [2021] NZCA 330

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 Appellant
AND	RAFID MOHAMMED SALIH Respondent

Hearing:	18 March 2021
Court:	Clifford, Brewer and Dunningham JJ
Counsel:	M Freeman and F A Manning for Appellant M V Smith for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Almarzooqi v Salih and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZCA 330
Decision Date: 23 July 2021 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed the appeal brought by Rahla Almarzooqi against Rafid Salih. The primary issue in this case was whether the Court of Appeal should recognise and enforce a judgment from the Dubai Personal Matters Court, which ordered Mr Salih to pay Ms Almarzooqi a marriage dowry. Ms Almarzooqi had argued that the Dubai court had jurisdiction, and that the obligation to pay the dowry was inseparable from the dissolution of the marriage, making the Dubai court's jurisdiction applicable to both the dissolution and the dowry payment. Mr Salih contested the Dubai court's jurisdiction, asserting that Ms Almarzooqi had not satisfied the necessary requirements to establish such jurisdiction under New Zealand law.

The Court of Appeal found that the Associate Judge in the High Court had not erred in his decision. The court held that New Zealand courts do not recognise the jurisdiction of a foreign court over a non-resident by reference to principles reflected in the High Court Rules 6.27-6.29. Furthermore, the court found that the obligation to pay the dowry was not an integral part of the marriage contract, and therefore the jurisdiction issue was governed by the principles applying to in personam proceedings. The court also rejected the argument that the Dubai court's jurisdiction should be recognised on the basis of reciprocity, as the limited recognition of jurisdiction on the basis of reciprocity in matrimonial proceedings overlapped with the recognition of jurisdiction in such proceedings on the basis of the in rem principle.

Ultimately, the Court of Appeal dismissed the appeal, concluding 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. The appeal is dismissed, and there is no order as to costs.

Orders