Salih v Almarzooqi - [2023] NZCA 645

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA309/2022
[2023] NZCA 645

BETWEEN	RAFID MOHAMMED SALIH Appellant
AND	RAHLA HUSSEIN AMIN HARDER ALMARZOOQI Respondent

Hearing:	22 February 2023
Court:	Courtney, Collins and Thomas JJ
Counsel:	P W Michalik and M V Smith for Appellant JLW Wass and M Freeman for Respondent
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…

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: [2023] NZCA 645
Decision Date: 14 December 2023 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Mr Rafid Mohammed Salih against a decision of the High Court that a nikah, an Islamic marriage contract, was enforceable in New Zealand and that he was liable for a deferred mahr (dower) of approximately NZD 230,000 to his ex-wife, Ms Rahla Hussein Amin Harder Almarzooqi. The case centred on the enforceability of the nikah, the proper law governing the contract, and whether the mahr was payable regardless of the reason for divorce. The Court of Appeal allowed the appeal and remitted the matter to the High Court for reconsideration. The Court held that the proper law governing the nikah was New Zealand law, not UAE law where the marriage was solemnised. It found that the nikah was enforceable in New Zealand, but Ms Almarzooqi could not rely on the findings of the Dubai court to prove the grounds for divorce. The Court also held that the mahr was payable regardless of the reason for divorce, but this issue required further evidence on the principles of Sharia law to be determined by the High Court on remand.

Orders