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 wife initiates divorce, as

1      For a discussion of this see Maria Hook “Enforcement of a promise to pay a mahr; characterisation and public policy in the context of Almarzooqi v Salih” The Conflict of Laws in New Zealand: News and Comment (online ed, Otago, 11 August 2021).

Ms Almarzooqi did, it is only this type of fault divorce that gives rise to an obligation to pay the Mahr. His consequential proposition is that a New Zealand Court, while recognising the legality of the divorce, cannot rely on the Dubai Court’s factual findings on fault. Rather, these must be proved in a New Zealand Court in the contract proceeding in order for the deferred Mahr to be payable.

[8]    Third, it is not contended that as a matter of law or public policy, a New Zealand Court should not enforce this type of obligation.

[9]    The Dubai Court, in addition to granting a divorce, ordered payment of the deferred Mahr and some short-term maintenance. Ms Almarzooqi unsuccessfully sought to enforce the monetary order aspect of the judgment in New Zealand.2 The Court of Appeal held that, unlike the divorce order, the monetary orders made in relation to a non-resident were not enforceable in New Zealand.3 Ms Almarzooqi therefore seeks to prove breach of contract in a New Zealand proceeding.

The proper law of the contract

[10]The plaintiff submits the proper law of the contract is that of UAE.

[11]   As regards relevant personal facts, the couple met through an online platform in  2010.  At  the  time,  and  indeed   up  until   the   marriage   three   years  later, Ms Almarzooqi was living in Australia. She was on a UAE government scholarship. Mr Salih was living  in  New  Zealand  and  working  as  a  dentist.  During  2010  Ms Almarzooqi made three brief trips to New Zealand to meet Mr Salih. After that there was one further trip in 2013 when she visited with her parents.

[12]   The couple travelled to UAE from their respective homes in December 2013 for the purpose of marrying. It was intended that the marriage take place in Sharjah where Ms Almarzooqi’s parents lived, but some issue with Mr Salih’s non-resident status made Dubai a more available location. The wedding took place on 26 December 2013, following agreement being reached as reflected in the Nikah. The Nikah was

2      Almarzooqi v Salih [2021] NZCA 330, [2021] NZFLR 501.

3 At [33].

on a standard form and completed in the Arabic language. It is evidenced by a Certificate issued by the Dubai Personal Status Court on 2 April 2014. A translation of the Certificate has been provided. Relevant aspects are now set out.

[13]Prior to the parties’ details, it is stated in the Certificate:

This marriage contract is solemnized this Thursday, 23 Saffar 1435H, corresponding to 26 of December 2013, at Dubai First Instance/Sharia Court by Judge Mohammed Eshaq Mal Allah Feroz; by proposal and acceptance, and in accordance with Islamic Sharia, God’s Holy Book, and the Traditions of His Prophet, to whom all God’s prayers and blessings be between the two contracting parties.

[14]   The parties’ details are recorded. For Ms Almarzooqi it is noted she was born in Sharjah, her nationality is UAE and her ID number is recorded as is her religion of Muslim. For Mr Salih it is noted he was born in Baghdad, his nationality is New Zealand, his New Zealand passport number is recorded as is his religion of Muslim.

[15]The next section notes:

Prompt Dowry:     AED Thirty Thousand      Received by the wife Deferred Dowry:    Five Hundred Thousand Only 500,000 AED The nearest of divorce or death

Dowry Accessories: Nil. Other Conditions:           -

Guardian of Husband:      Himself.

Guardian of the Wife:       her father Hussain Amin Haidar Almarzooqi. The wife was present:  Herself.

The two parties were acquainted with the legal implications of marriage and it was verified that they are free and clear from all legal impediments in the presence and testimony of the two witnesses.

[16]   The couple returned to New Zealand. Mr Salih came first as he needed to alter his accommodation, and Ms Almarzooqi followed a few weeks later. The marriage was an unhappy one and lasted only a short time. There were mutual denied allegations of violence and it is clear the marriage was far from successful. The Family Court was twice seized of protection order applications, and at various times police were involved. By November 2015 Ms Almarzooqi was back in the UAE and she shortly thereafter applied for the divorce.

[17]   Concerning which is the proper law, the contract is silent on the point. Both parties accept the following extract taken from The Conflict of Laws in New Zealand correctly sets out the relevant considerations:4

6.17 Where the parties have failed to make a choice of law, New Zealand courts apply the law of the place with the closest and most real connection to the contract. Here courts may take account of a broad range of connecting factors, including the place of performance of the contract, the parties’ places of business, the nature and location of the subject matter of the contract, a connection with a previous transaction, the form of the documents, the place where the contract was made, the currency in which payment is to be made, a jurisdiction or arbitration agreement, the fact that the contract or its terms may not be enforceable under one of the potentially applicable laws, and references to particular statutes or provisions.

[18]   The plaintiff emphasises the contract is made using a UAE court document, is made under the authority of the Dubai Personal Status Court, has been filed with that Court, is in the Arabic language, and provides for payment in dirhams. It is submitted it is clear that the parties intended their rights and obligations to be determined in accordance with Sharia principles, and that is what UAE law is sourced from and reflects.

[19]   The defendant submits the proper law is New Zealand law. Reliance is placed on  a  leave  judgment  of  the  Supreme  Court  in  relation  to  an  application  by Ms Almarzooqi to appeal the Court of Appeal decision rejecting enforceability of the Dubai Court order for payment. Ms Almarzooqi had sought to argue the Court should revisit the criteria for when a judgment of a foreign court will be enforced. The Court observed it was not clear that the proposed alternative criteria, of “real and substantial connection” would produce a different outcome.5 The respondent submits that this points to the proper law being that of New Zealand.

4      Maria Hook and Jack Wass (eds) The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2000), at [6.17]. The accompanying footnote sets out the authorities from which the extract is drawn: Bexhill Funding Group Ltd v MBA Ltd HC Wellington CIV-2003-485-205, 15 September 2003 at [30]; Bell v Lal [2012] NZHC 1264 at [32]; Lan Cabling Products Ltd v Sudhakar HC Auckland CIV-2007-404-7232, 20 August 2008 at [27]; MH Publications Ltd v Komori (UK) Ltd HC Auckland CIV-2007-404-6520, 17 September 2008 at [89]; and Chevalier Wholesale Produce Ltd v Joes Farm Produce Ltd HC Auckland CIV-2010-404-4229, 17 November 2011 at [19]–[26].

5      Almarzooqi v Salih [2021] NZSC 161, [2021] NZFLR 606 at [11].

[20]   Mr Salih submits he had no connection with UAE and the wedding only took place there because it was Ms Almarzooqi’s parents’ residence. She herself was living in Australia and intending to then live in New Zealand. That is where they lived during the marriage and subsequently. It is submitted that the divorce process required by UAE law, of mediation controlled by a government body, the Family Orientation Committee, is not easy to replicate in New Zealand and tells against UAE law being the proper law.

[21]   The issue of the proper law of the contract arises here on these facts because the couple travelled to UAE to be married in accordance with the law applicable there. As it happens, however, the form of the marriage and the applicable law is not unique to UAE but is common to Muslim marriages wherever they occur. The reality is that had they married in New Zealand the form, and the Nikah, would be the same. Obviously there would be some differences such as the currency of the Mahr but otherwise the essence would be the same.

[22]   The universality of the contract lessens the significance of the particular jurisdiction where the contract arose, but does not eliminate it. It remains the case that it was the couple’s choice to travel to UAE, to have the marriage solemnised in that jurisdiction and to register the marriage in that jurisdiction. The Nikah and the certificate evidencing it carry the authority of the Dubai Personal Status Court.

[23]   The intended residence of New Zealand is of some significance but should not be overstated. It was their intended residence at the time of the marriage but need not be forever. Further, the contract obligation (the Mahr in issue) is unaffected by the place of residence. It only becomes relevant once the marriage is ended.

[24]   An argument the defendant advances on a subsequent issue has potential relevance here. The defendant submits that the Mahr is only payable under Sharia law if the husband initiates the divorce or the wife obtains divorce via the proof of harm route. If that were correct it would suggest that divorce processes and grounds are significant to the terms of the contract. That in turn would suggest, in my view, that a Sharia law system is more likely to be the proper law of the contract, since those

concepts are not, for example, part of New Zealand divorce law, and would be unlikely to be recognised.

[25]   The same argument requires the defendant to submit that the law of the contract is New Zealand contract law “informed by principles of Sharia law applicable to marriage and divorce”. Putting to one side for now the viability of that proposition, the need to attach to New Zealand contract law Sharia law on marriage and divorce again suggests the proper law is that of UAE which is a system reflecting such principles.

[26]   On balance, I consider the proper law of the contract is UAE. This reflects the particular facts of the case where the couple travelled to that jurisdiction to be married in accordance with a particular tradition (albeit one not unique to the jurisdiction), and the agreed characterisation of the case as solely one in contract. I do not regard the Supreme Court comments in the leave judgment as relevant since they relate to jurisdiction, not to the proper law of the contract.6

[27]   The determination of the proper law is not without some complexity so the judgment will nevertheless analyse the claim under both laws.

Is the Mahr payable?

(a)     Under UAE law

[28]   The Court heard evidence from three witnesses. Two are practitioners from Dubai who practise in the area. The third was a New Zealand-based lawyer with experience in Syria but not UAE. His evidence focused on setting out the relevant Sharia principles, buttressed by the proposition that they are universally applied in Sharia-based legal systems.

[29]   As regards what is the law of UAE, I accept the evidence of the two Dubai- based lawyers. They have current familiarity with the jurisdiction and their evidence also reflects the terms of the applicable legislation. A preference for their evidence is

6      It is not therefore necessary to address the issue of the precedent value of the leave decisions.

a sufficiently obvious choice that I will set out the conclusions drawn from their evidence and then note only briefly the contrary view.

[30]   The evidence came in different forms. The primary witness was Ms Diana Hamade. She is the principal of her own law firm and practises family law, both in Sharia Courts and on expatriate family law matters. She has practised in the UAE for 15 years. The evidence of the second witness came by way of two opinions. The first opinion was sought by Mr Salih himself; the second was sought by Mr Salih’s counsel. The practitioner in question is Mr Salah Al Balooshi who founded his Dubai law firm and has practised in the Middle East for 13 years. His opinion on the matters to be discussed is the same as Ms Hamade’s.

[31]   The relevant law is the Personal Status Law.7 There are three divorce processes. A husband has a general right to divorce his wife. A wife has a right only by establishing harm, or through Khula which is a divorce the husband consents to. Ms Almarzooqi followed the harm option, which is provided for in art 117 of the Personal Status Law.

[32]   Every divorce process requires an attempt at reconciliation and a mediator is appointed to facilitate this. Mr Salih confirmed in evidence that he had been rung by such a person and spoke to them. Ms Almarzooqi claimed harm, both physical or more general, and called two witnesses (her brothers) in support. Mr Salih did not wish to expose himself to what he perceived as a safety risk by travelling to the UAE. He sought instead to file a statement of his evidence and offered to appear remotely. Neither option was acceptable to the Dubai Court. Mr Salih maintained his refusal to travel and declined to instruct local counsel. Ms Almarzooqi’s claim was therefore unopposed but had to nevertheless be proved. A judgment was issued confirming proof and a divorce was therefore granted.

[33]   As previously noted, the Court also ordered payment of the Mahr. Although not enforceable in New Zealand, it is evidence that the Dubai Court considered the divorce triggered the Mahr obligation.

7      Federal Law No (28) of 2005 on Personal Status (UAE).

[34]   A point of difference emerged from the evidence of the defendant’s expert, Mr Taha. In his initial evidence he commented on what seemed a different process which involved arbitrators determining where fault lay as between the couple, and in what proportions. The arbitrators would then recommend compensation (called Badal) reflective of the fault assessment. Mr Taha’s evidence was that this compensation could be of a quantum that would offset the deferred Mahr.

[35]   The Dubai lawyers said Mr Taha was describing a different divorce process which is reflected in arts 118 to 120 of the Personal Status Law. These provisions apply where the wife has failed to prove fault in her art 117 claim. A second claim on different facts may be brought under these articles and the process as described by Mr Taha occurs. Where Ms Hamade disagreed with Mr Taha concerned the significance of the possible compensation orders. Her evidence is that the Badal is a different payment and is unconnected to the liability to pay the Mahr. Her further evidence is that in the UAE a badal greater than 10,000 dirhams is never as a matter of practice awarded. Often it is less.

[36]   Mr Taha disputed this, saying his reading of relevant cases had not disclosed such a limit nor was it written in the law. Notably, however, he does not seem to have found a case that contradicts Ms Hamade’s evidence.

[37]   The firm view of the Dubai lawyers was that there is no connection between the process or grounds of divorce, and the obligation to pay the Mahr. Both asserted this without qualification, saying that in the UAE the obligation to pay the Mahr arose on the fact of divorce. Ms Hamade said this would be the case even where a wife had committed adultery and been criminally sanctioned. Mr Taha disagreed.

[38]   The key point of difference between the witnesses concerns the role of compensation or Badal under this particular divorce process. In terms of which evidence is to be preferred, all three experts are practitioners. None has special training or holds any particular post or other status. Two, however, have the undoubted benefit of practising within the relevant jurisdiction. Mr Taha acknowledged he had no specific exposure to the Personal Status Law prior to being briefed on this case. In these circumstances there is no basis on which a Court could prefer his evidence. I

add further, however, that Ms Hamade was in my assessment a sound witness. She displayed good familiarity with the matters on which she considered herself competent to speak. She clearly had a broader knowledge of the topics but was careful to limit her evidence to her own jurisdiction and areas of expertise.

[39]   I accordingly conclude that under UAE law the deferred Mahr is payable on divorce. It seems common ground it is payable consequent upon a divorce obtained pursuant to art 117. It seems also it is common ground it is payable if the divorce is pursuant to the arts 118–120 process, but Mr Salih contends that under that process the Badal may offset the Mahr. That is not the evidence of the Dubai practitioners and for the reasons given, I accept that contrary evidence.

[40]   It follows that if the proper law of the contract is UAE law, the Mahr has been payable since 1 November 2016. Mr Salih has not paid it and is in breach of the contract.

(b)     If the proper law of the contract is New Zealand law

[41]   The contract is straightforward in its terms. It expresses the deferred dowry to be payable on divorce. It is common ground the couple are divorced. The focus must be therefore on why Mr Salih contends he is nevertheless not obligated to pay.

[42]The statement of defence states that:

Under Sharia law where a wife applies for divorce, liability to pay the Mahr

arises only on proof of the husband’s repudiation of the Nikah.

[43]   Accepting for the moment for analysis purposes the correctness of that proposition, that is not what this contract says on its face. Rather, the Nikah refers to the status of divorce as the triggering event, and does not attribute any relevance to the divorce process or the particular grounds for divorce. The defendant’s submissions do not set out a pathway by which the Court might move from the contractual term of “divorce” to interpreting the contract in a way that reflects the pleaded proposition.

[44]   Mr Salih has floated the concept of “New Zealand contract law informed by Sharia principles”, but beyond that there is no analysis proffered nor reference to

authority that might explain that concept, and assist with its application here. There is no implied term suggested, so it would presumably have to be that the word “divorce” has a special meaning in such contracts. No evidence to that effect has been led.

[45]   My assessment is that the defendant’s argument seeks to write into the contract what he says are the rules relating to when a wife might obtain a divorce. On his expectation Ms Almarzooqi could not obtain a divorce unless she proved repudiation by him, and he maintains he has not repudiated nor caused harm in the ways alleged. However, the reality is that the plaintiff did obtain a divorce, and that is the triggering event for liability to pay the Mahr.

[46]   In these circumstances it is unnecessary to explore in any depth the propositions inherent in the defendant’s case. These include that Sharia law is different from what the Court has found to be the law in UAE, and that a New Zealand Court applying New Zealand law in a personal relationship case should give effect to a contract (as Mr Salih interprets it) that accords the husband significantly greater rights than the wife in terms of divorce. I raise this last point simply to highlight that the issues are wider than the material presented by the defendant appears to acknowledge.

[47]   I also observe that in my assessment the defendant did not adequately explain how his application in New Zealand for a divorce was to be treated. He applied for and obtained an order of dissolution from the New Zealand Family Court. I recognise that was in response to Ms Almarzooqi obtaining an order in Dubai, but there was no evidence on how this unilateral act of divorce by the husband should be regarded under Sharia law in terms of liability to pay the Mahr. On the face of Mr Taha’s evidence, it would seem to trigger the obligation.

[48]   I finally observe that as the defendant’s case was dependent upon the Court making findings as to the requirements of Sharia law, care is needed over the choice of witness to present such evidence. With due respect to Mr Taha, he is a legal practitioner with no specialised training in Sharia principles, nor any particular status or role within the Muslim community. The plaintiff led evidence from Dubai practitioners because the scope of their evidence was the relevant law of that jurisdiction as practised in the Courts. It is very different from asking a New Zealand

Court to identify what the applicable Sharia principles are on the topic of personal status law. A witness with appropriate authority to assist the Court is to be expected.

[49]   If the proper law of the contract is New Zealand law, Ms Almarzooqi has established an entitlement to the Mahr from when her Dubai divorce decree took effect. Mr Salih has not paid the money and is in breach.

Should the quantum of the Mahr be reduced?

[50]   The UAE limits the size of the Mahr, when the couple are both citizens of UAE, to 50,000 dirhams. This rule does not apply if one of the couple is not a citizen of UAE. On behalf of Mr Salih, Mr Smith submits this is a law that discriminates on the grounds of nationality. It is further submitted that for public policy reasons the Court should apply the same monetary cap to this Nikah. This would limit Mr Salih’s liability to 50,000 dirhams, less the 30,000 dirhams already paid.

[51]   The argument fails at the first step. There is a different treatment but the effect of the difference is to leave non-citizens with complete freedom of contract. The law does not require the Mahr to be higher where a non-citizen is involved. The couple can agree on whatever sum they choose. There is accordingly no disadvantage to non- citizens created by the difference. It is therefore not necessary to consider the law on when a contract might be varied for public policy reasons.

Conclusion

[52]   The claim succeeds. Ms Almarzooqi has proved a breach by Mr Salih of an obligation to pay the Mahr.

[53]   The divorce decree of the Personal Status Court is dated 1 November 2016 and I fix that as the date the obligation to pay arose.

[54]   The obligation sum is 500,000 dirhams to be assessed in New Zealand dollars at the exchange rate applicable on 1 November 2016.

[55]   Interest is payable from that date as calculated in accordance with the Interest on Money Claims Act 2016.

[56]   I did not hear from the parties on costs. It would seem a straightforward case where costs follow the event on a 2B basis. However, it is open to the parties to file memoranda if a contrary position is sought.

Simon France J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiff Michael Smith Law, Wellington for Defendant