| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA309/2022 [2023] NZCA 645 |
| BETWEEN | RAFID MOHAMMED SALIH |
| AND | RAHLA HUSSEIN AMIN HARDER ALMARZOOQI |
| Hearing: | 22 February 2023 |
Court: | Courtney, Collins and Thomas JJ |
Counsel: | P W Michalik and M V Smith for Appellant |
Judgment: | 14 December 2023 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe case is remitted to the High Court for reconsideration in accordance with this decision.
CWe make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Table of Contents
| Para No | |
| Introduction | [1] |
| Issues on appeal | [6] |
| The function of the mahr in Islamic marriage | [17] |
| The proper law of the contract | |
| Relevant principles | [28] |
| The circumstances in which the nikah was concluded | [31] |
| The Judge’s finding | [50] |
| An express choice? | [53] |
| Did the Judge err in concluding the UAE had the closest and most real connection with the marriage contract? | [56] |
| Enforcement of the nikah in overseas jurisdictions | [69] |
| The United Kingdom | [70] |
| Canada | [80] |
| Australia | [89] |
| Is the nikah unenforceable? | |
| A general observation | [92] |
| Does s 5 of the Domestic Actions Act 1975 apply? | [94] |
| Does the Property (Relationships) Act 1976 apply? | [95] |
| Is the nikah void as contrary to public policy? | [100] |
| Interpretation of the nikah and proof of entitlement to mahr | [102] |
| Interpretation | [103] |
| The UAE court’s findings of fact | [110] |
| Result | [114] |
Introduction
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 before the marriage (the “prompt” mahr) and in part on the earlier of death or divorce (the “deferred” mahr).[1] It is the first time the question of enforceability of a nikah has been considered by this Court.
[1]There are various spellings of mahr. For convenience we adopt the spelling used by the parties and counsel in this case. We note, too, that the mahr is sometimes described as a dower or dowry, though that differs from the usual understanding of that word in New Zealand as a payment made by the bride’s parents to the husband and his family.
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.
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…
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- Case
- [2023] NZCA 645
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