Almarzooqi v Salih - [2025] NZHC 1436

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-751

[2025] NZHC 1436

BETWEEN RAHLA HUSSEIN AMIN HARDER ALMARZOOQI
Plaintiff

AND

RAFID MOHAMMED SALIH

Defendant

Hearing: 26 March 2025

Appearances:

M Freeman and J Wass for Plaintiff

P Michalik and M Smith for Defendant

Judgment:

4 June 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1] The defendant in this proceeding, Mr Salih, applies for summary judgment against the plaintiff, Ms Almarzooqi, on the basis of s 11 of the Limitation Act 2010. There are also outstanding issues in respect of the defendant’s earlier application for strike out of parts of the affidavit evidence that have not been resolved between the parties.

[2] The background to this proceeding was set out in a recent Court of Appeal decision, which I gratefully adopt:1
[1] This appeal concerns the enforcement of a nikah — an Islamic marriage contract, under which the husband is required to provide a gift (mahr) to the wife. The mahr is usually of monetary value and is given in part

1 Salih v Almarzooqi [2023] NZCA 645.

ALMARZOOQI v SALIH [2025] NZHC 1436 [4 June 2025]

before the marriage (the “prompt” mahr) and in part on the earlier of death or divorce (the “deferred” mahr).2 …

[2] In 2013 Mr Salih and Ms Almarzooqi married in Dubai, in the United Arab Emirates (UAE), in a traditional Islamic ceremony, which included the signing of a nikah. The nikah provides for a deferred mahr of AED 500,000, equivalent to approximately NZD 230,000. The marriage only lasted a short time. The parties are now divorced, though both still live in New Zealand. There is a dispute over whether Mr Salih is liable for the deferred mahr, either in full or in part.

[3] In November 2016, Ms Almarzooqi obtained an order for divorce from the Dubai Personal Matters Court on the ground that Mr Salih had mistreated her. She also obtained an order for payment of the deferred mahr in full. Ms Almarzooqi brought proceedings to have the latter recognised and enforced in New Zealand by summary judgment and, in the alternative, to enforce payment under the nikah directly.

[4] The summary judgment application was determined first and was unsuccessful.3 Ms Almarzooqi then advanced her claim for payment of the mahr. The issues for determination were the proper law of the contract, whether the mahr had become payable under that law and if so, whether the Court should reduce the amount payable on public policy grounds. In the High Court Mr Salih accepted the validity of the divorce but maintained that Ms Almarzooqi had to prove her allegations of misconduct in a New Zealand court and could not rely on the factual findings of the Dubai court.

[5] Simon France J held that the proper law of the nikah is UAE law and that under that law the mahr became payable upon the divorce being granted…

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.

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Details

Case: [2025] NZHC 1436
Decision Date: 4 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Ms Rahla Hussein Amin Harder Almarzooqi sued Mr Rafid Mohammed Salih for payment of a deferred dowry, known as mahr, under a nikah, or Islamic marriage contract, entered into between them in 2013 in Dubai, United Arab Emirates. The nikah provided for a deferred mahr of AED 500,000, equivalent to approximately NZD 230,000. The marriage was brief, and the parties are now divorced. Ms Almarzooqi brought proceedings to enforce the Dubai court’s decision ordering Mr Salih to pay the mahr and, in the alternative, to enforce payment under the nikah directly. The issues for determination were the proper law of the contract, whether the mahr had become payable under that law and, if so, whether the Court should reduce the amount payable on public policy grounds. The Court of Appeal had previously held that the proper law of the contract was New Zealand law. In the High Court, the parties had agreed that the proper law was the Sharia law of the United Arab Emirates. The Court of Appeal remitted the matter to the High Court to determine the interpretation of the nikah, taking into account expert evidence on general principles of Sharia law. The Court of Appeal also held that Ms Almarzooqi would need to prove a particular ground for divorce, if required to do so by the proper law of the nikah, and could not rely on the factual findings of the Dubai court. The Court held that Mr Salih had a defence to the claim under s 11 of the Limitation Act, which provides that a claim must be brought within six years of the date of the act or omission on which the claim is based. Mr Salih argued that the amendments in the second amended statement of claim created a fresh cause of action, which had been filed more than six years after the date of the alleged misconduct of Mr Salih during 2014 or the date the marriage ended on 1 November 2016. The Court held that the amendments did not change the essential nature of the claim, as it was still a claim for payment of the mahr under the nikah. The Court concluded that the claim was not so clearly statute-barred that it could not succeed and was “quite clearly hopeless.” The Court considered it arguable that the fresh cause of action could be regarded as an “ancillary claim” under s 4 of the Limitation Act, which provides that a court may order that relief may be granted in respect of an ancillary claim as if no limitation defence applies to it. The Court dismissed Mr Salih’s application for summary judgment and resolved Mr Salih’s application for strike out of certain paragraphs of Ms Almarzooqi’s expert’s affidavit by consent. The matter was listed for a case management conference.

Orders