Almarzooqu v Salih - [2022] NZHC 1170

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-751 [2022] NZHC 1170

BETWEEN
RAHLA HUSSEIN AMIN HARDER ALMARZOOQI

Plaintiff

AND

RAFID MOHAMMED SALIH

Defendant

Hearing: 4 and 5 May 2022

Counsel:

M Freeman and J L W Wass for Plaintiff M V Smith for Defendant

Judgment:

25 May 2022

JUDGMENT OF SIMON FRANCE J

Introduction

[1] The parties to this litigation were formerly married but are now divorced. The marriage took place in the United Arab Emirates (UAE). Prior to the marriage Ms Almarzooqi, a citizen of UAE, had been living in Australia. Mr Salih, born in Iraq, is a New Zealand citizen then living in New Zealand. It was the intention of the couple to live in New Zealand and that is what occurred.

[2] The parties are Muslims, and the marriage was conducted in accordance with those traditions and with UAE law which is sourced in Sharia law. The marriage was pursuant to a contract (Nikah) which took a normal form. The Nikah is a mandatory feature of weddings undertaken in these traditions as is a particular component of the Nikah, the Mahr. The Mahr is a payment to be made by the husband to the wife. It

ALMARZOOQI v SALIH [2022] NZHC 1170 [25 May 2022]

becomes her property. In the present case, again not uncommon, the contract provided for an immediate payment (30,000 dirhams, approximately $13,000) and a deferred payment (500,000 dirhams, approximately $215,000). The contract describes the deferred payment as being payable on the death of the husband or the occurrence of irreconcilable divorce.

[3] It is common ground the couple are divorced. The deferred Mahr has not been paid, and Ms Almarzooqi brings this proceeding in contract to recover the sum said to be owed.

[4]The issues between the parties are three:

(a)whether the proper law of the contract is that of UAE or New Zealand;

(b)whatever the proper law, whether the Mahr has become payable; and

(c)if it is payable, whether the Court should reduce the quantum payable on public policy grounds.

[5] This statement of the issues carries the risk of obscuring what is not in issue. These non-contentious (in this proceeding) issues merit early identification so that the proper limits of the decision are clear.

[6] First, as regards the issue of the proper law, both parties characterise the claim as being in contract. It is not argued, but is arguable, that it should be analysed through a wider lens such as the law concerning marriage, divorce and relationship property.1

[7] Second, there is no challenge to the formation of the contract and its validity. Nor is there any dispute that the marriage was ended by a divorce decree issued by the Personal Status Court of Dubai on 1 December 2016. It is also common ground that the particular divorce process was one where the wife pleads and must prove harm sourced in the husband. Mr Salih contends that where the…

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 Almarzooqu 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: [2022] NZHC 1170
Decision Date: 25 May 2022

CaseChat Overview and Summary

In Almarzooqi v Salih, the High Court of New Zealand was tasked with determining the proper law of a marriage contract, whether the deferred payment known as the Mahr was payable under that law, and whether the quantum of the Mahr should be reduced on public policy grounds. The plaintiff, Ms Almarzooqi, and the defendant, Mr Salih, were formerly married under Sharia law in the UAE, with the marriage contract stipulating an immediate and deferred payment of the Mahr. The couple divorced, and Ms Almarzooqi sought to recover the deferred Mahr, arguing that it was payable under the terms of the contract.

The court first considered the proper law of the contract, with both parties agreeing that the law of the place with the closest and most real connection to the contract should be applied. The court found that the proper law was that of the UAE, as the marriage took place there and was conducted in accordance with UAE law and Sharia principles. The court also analyzed the claim under New Zealand law for completeness.

Next, the court examined whether the Mahr was payable under UAE law. The court accepted the evidence of two UAE-based lawyers who testified that the deferred Mahr was payable upon divorce, regardless of the process or grounds for divorce. The court rejected the evidence of the defendant's expert, who argued that a different divorce process could result in compensation that would offset the Mahr.

Under New Zealand law, the court found that the terms of the contract made clear that the deferred Mahr was payable upon divorce, and since the parties were divorced, the Mahr was payable.

Finally, the court considered whether the quantum of the Mahr should be reduced on public policy grounds. The defendant argued that a UAE law limiting the size of the Mahr to 50,000 dirhams when both parties are UAE citizens was discriminatory and should be applied to this case. The court rejected this argument, finding that the law did not disadvantage non-citizens and did not require the Mahr to be higher when a non-citizen was involved.

In conclusion, the court found in favor of the plaintiff, ordering the defendant to pay the deferred Mahr, interest, and costs.

Orders