Written by Richard Pidgeon

Salih v Almarzooqi [2023] NZCA 645 represents the latest judgment in a long-running dispute over a Muslim marriage contract (Nikah) and the enforcement of the payment of a second conditional nuptial gift from the husband to his wife (Mahr). The conditions were death or irreconcilable divorce. The marriage was short lived and allegedly marred by violence. A conflict of laws situation arose as to whether New Zealand or the United Arab Emirates (UAE) was the seat of law, and in this case there were interesting elements of UAE’s version of Sharia law interwoven. Ultimately, the Court of Appeal has decided that New Zealand is the proper seat of law and the matter has been returned to the High Court to put the wife to proof on her allegations of family violence.

Background

The background is not in dispute.[1] Over the historic course of the matter, (as ideally will become clear in this article), the claim had metamorphosed from a straight enforcement matter:

  • the UAE judgment at common law;[2] and/or
  • a claim for breach of the contract of marriage in which she claims the deferred mahr on divorce.

The legally-aided Ms Almarzooqi sued for the payment (on divorce) of the as yet unpaid, deferred Mahr (as described below). In the High Court (in this round of litigation) the late Justice Simon France recounted that:[3]

  • The Muslim parties were formerly married on 26 December 2013 but are now divorced, having separated in May 2014.
  • The marriage took place in the UAE under law sourced from Sharia law and there is no dispute as to the formation of the marital contract (nikah)[4].
  • The couple met on a Muslim online dating site: Mr Salih was a dentist living in New Zealand (born in Iraq) and Ms Almarzooqi was living in Australia (but a citizen of the UAE).
  • The marriage was pursuant to a contract (Nikah) which took a normal form, comprising a Mahr, which is a payment to be made by the husband to the wife (and become her property).
  • The Mahr provided for:
    • an immediate payment of 30,000 dirhams;[5] and
    • a deferred payment of 500,000 dirhams[6] payable on the death of the husband or the occurrence of irreconcilable divorce. The payment of this element of the Mahr is the focus of proceedings, that is, the battle is over $230,000, honour and pride.
  • Ms Almarzooqi obtained a divorce by default (based on alleged spousal abuse) in the UAE and attempted to enforce the Mahr in New Zealand (as she had also obtained an order from the Dubai Personal Matters Court for payment of it). Mr Salih had been unsuccessful in filing material in the UAE, which incidentally denied the abuse but did not oppose the divorce. He therefore had not submitted to the UAE jurisdiction.

As her Honour Justice Courtney noted in setting the staging point in the Court of Appeal:[7]

[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 by the Dubai court, regardless of the ground on which it was granted.  He also held that if New Zealand law applied, the nikah would be similarly enforceable and the mahr therefore payable.  He entered judgment against Mr Salih for the full amount of the mahr, to be assessed in New Zealand dollars.  Mr Salih appeals.

The Court of Appeal

The issues (settled after some procedural wrangling)[8] which the Court of Appeal had to consider and determine were:[9]

(a)       Did the Judge err in finding that the proper law of the nikah is UAE law?

(b)       If so, is the nikah unenforceable under New Zealand law by reason of the DAA, the PRA and/or public policy considerations?

(c)       If the nikah is enforceable under New Zealand law:

(i)         Properly interpreted, does the nikah require Mr Salih to pay the mahr by reason only of the fact of the divorce order made by the Dubai court?

(ii)        Is Ms Almarzooqi entitled to rely on the factual findings made by the Dubai court?

I now approach the decision within this issues rubric, as did the Court, but first repeat the eloquent description of the purpose of the Mahr (from the judgment):[10]

Mahr, when presented and accepted, makes a symbolic representation of the earnestness of each spouse to live with the other a mutually cooperative and trustful life.  In other words, by giving and taking mahr, each spouse takes the vow to stand by the other with the purpose of attaining transcendent tranquillity under the chaste alliance known as nikah (marriage).

Did the Judge err in finding that the proper law of the Nikah is UAE law?

Yes. New Zealand has the closest and most real connection with the Nikah based on the form of contract, currency of the Mahr, the place of contract, where it was to be performed (the parties planned to live in New Zealand permanently), and the enforceability of the contract in the two jurisdictions and any barriers to that process. The parties married in the UAE simply to satisfy the wife’s family rather than to gain access to UAE law.

If so, is the Nikah unenforceable under New Zealand law by reason of the DAA, the PRA and/or public policy considerations?

The Court traversed Commonwealth jurisprudence with a conclusion[11] emphasising the need for expert religious evidence after some common law equivocation on the issue of the enforceability of Nikah. This need for expert evidence as to the principles of Sharia law (in all its inter-country, inter-cultural nuances) rather than UAE law is fundamental to the outcome of the appeal.

Section 5 of the Domestic Actions Act 1975 did not apply as the Nikah was not an agreement to marry but rather an agreement entered into upon marriage to take effect, in part, immediately and, in part, at the end of the marriage.[12]

Section 21 of the Property (Relationships) Act 1976 was beyond the ambit of the case at hand, but could conceivably be relevant to nikah in other circumstances, and If such issues did arise, we would expect that extensive consideration would be required as to the principles to be applied and may warrant the input of interveners.[13]

The Nikah was not void for public policy reasons despite T v T, which confirmed the long line of English authority:[14]

that the maintenance and safeguarding of the marriage relationship was regarded as being a matter of public interest.  Indeed, for a time, the Courts would not recognise an agreement for an immediate separation.  Later … the House of Lords … finally decided that agreements for immediate separation or made when there was actual present separation were legal and valid.  What, however, was not recognised was a contract before marriage or before the spouses actually separated or agreed to separate which provided for the position if in future they did separate.

This historic concept had not been applied to Nikah, aside from in Mohamed v Mohamed,[15] which in turn cited Radmacher v Granatino[16] of which Courtney J remarked upon:[17]

The United Kingdom Supreme Court held that the rule that agreements which provided for the future separation of the parties (whether entered into before or after a marriage) were contrary to public policy was “obsolete and should be swept away”.

If the Nikah is enforceable under New Zealand law?

Yes it is, therefore…

(i)        Properly interpreted, does the nikah require Mr Salih to pay the mahr by reason only of the fact of the divorce order made by the Dubai court?

Context is king (or emir as the case may be) and regular rules of contractual interpretation[18] apply:[19]

[109] Ideally, the principles of Sharia law, as they would have been understood by the parties and by a reasonable bystander, would have been addressed more extensively, either by an expert jointly engaged for that purpose or by each party adducing evidence.  We make no criticism of the parties for not addressing this issue more fully because Sharia law (as opposed to UAE law) was not identified as a relevant topic on which evidence was required and the issues in the case have taken some time to emerge fully.  However, we do not feel able to do justice to the parties on the limited evidence available to us.  The proper course is to remit the matter to the High Court for this purpose.

(ii)       Is Ms Almarzooqi entitled to rely on the factual findings made by the Dubai court?

No res judicata (broadly-speaking, a finding that matters have already been determined in the UAE) emerges, as the husband, Mr Salih had not submitted to the UAE jurisdiction. Trial by the regular giving of evidence was required:[20]

If the High Court ultimately finds that, properly interpreted, the nikah requires Mr Salih to pay the mahr only upon proof of his misconduct, Ms Almarzooqi will need to prove that fact.

Conclusion

Justice Courtney was careful to emphasise the potential impact of the unanimous Court of Appeal’s decision on New Zealand’s Muslim community, exemplified by her comments:[21]

It is to be expected that the outcome of this case will be significant, not only to the parties, but also to wider Muslim communities in New Zealand. The issues are not straightforward. However, in a country as diverse as New Zealand it is important that civil disputes are able to be determined by the courts in a manner that both reflects the orthodox application of New Zealand law and recognises the cultural context in which the disputes arise. 

The 2018 Census showed that 57,276 New Zealanders identified as believers of Islam. Decisions like Salih v Almarzooqi are of increasing importance as New Zealand develops its own jurisprudence and popular understanding with respect to Sharia law (perhaps with one eye cast to the United Kingdom, which has a much longer experience[22] in this area).

One way or another (via the High Court or an attempted leave application to the Supreme Court, or, quite likely both), this matter looks set to continue inside a courtroom or two. The parties will expend their resources – and in doing so make some law. From an objective point of view, and with the wife legally aided,[23] an out-of-court solution might be desirable. Then again, the parties might be committed to a litigation road for a wide range of mixed religious and cultural (or other) reasons.

Here, if the matter proceeds to trial, the key issue will be whether the divorce can be seen to be based on relevant marital misconduct at Sharia law. If not, the divorce appears to be a khul[24] divorce (as opposed to talaq or faskh[25] divorce), which has the effect of releasing the husband of his obligation to pay the deferred Mahr.

 

 

 

 

 

[1] Nor should it be after a string of cases: Almarzooqi v Salih [2020] NZHC 1049 [husband’s unsuccessful security for costs application (due to the wife’s legally aided status and section 45 of the Legal Services Act 2011)]; Almarzooqi v Salih [2020] NZHC 2441 [wife’s unsuccessful summary judgment application: enforcement]; Almarzooqi v Salih [2021] NZCA 330, [2021] NZFLR 501 [wife’s unsuccessful NZCA appeal: enforcement]; Almarzooqi v Salih [2021] NZSC 161, [2021] NZFLR 606 [wife’s unsuccessful application for leave to appeal to the NZSC: enforcement]; and Almarzooqi v Salih [2022] NZHC 1170, [2022] NZFLR 282 [judgment under appeal].

[2] The Reciprocal Enforcement of Judgments Act 1934 does not apply to the UAE (as a non-signatory to the underlying international convention), and the Senior Courts Act 2016 (NZ) only applies to Commonwealth countries. Leave of the New Zealand court is required to enforce the foreign judgment in New Zealand, and leave is ordinarily conditional on the applicant proving three things, (shaped here to this situation): (1) the UAE had jurisdiction; (2) the judgment is for a liquidated sum; and (3) the judgment is final and conclusive. See: Eilenberg v Gutierrez [2017] NZCA 270 at [30]; and Von Wyl v Engler [1998] 3 NZLR 416, (1998) 12 PRNZ 187. This was put at its starkest by Judge Johnston in the security for costs decision, above at n 1.

[3] Almarzooqi v Salih [2022] NZHC 1170, [2022] NZFLR 282.

[4] Parties married by Nikah alone in New Zealand must register their marriage under the Marriage Act 1955 to be formally married; otherwise, at law, they are deemed to be in a de facto relationship.

[5] Approximately $13,000

[6] Approximately $215,000 (or $230,000 as noted in the Court of Appeal).

[7] Salih v Almarzooqi [2023] NZCA 645 at [5].

[8] Elements of the appellant’s argument were argued for the first time in the Court of Appeal, which required that Court’s permission or leave to proceed. Not all elements were permitted to proceed.

[9] Salih, above n 7, at [16].

[10] Salih, above n 7, at [21], citing Pascale Fournier Muslim Marriage in Western Courts: Lost in Transplantation (Ashgate, Surrey, 2010) at 17, which in turn cited M A Wani The Islamic Law on Maintenance of Women, Children, Parents and Other Relatives: Classical Principles and Modern Legislations from India and Muslim Countries (Upright Study Home, Kashmir, 1995) at 193.

[11] Salih, above n 7, at [91].

[12] Salih, above n 7, at [94].

[13] Salih, above n 7, at [99].

[14] T v T [1961] 1 NZLR 352 (CA) per North J.

[15] Mohamed v Mohamed [2012] NSWSC 852. This was one of the Commonwealth cases referred to in the judicial exegesis of which this article does not do justice to.

[16] Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534.

[17] Salih, above n 7, at [101].

[18] Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60]–[61] citing Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988 at [16] insofar and inter alia as the objective meaning is taken to be that which the parties intended.

[19] Salih, above n 7, at [109].

[20] Salih, above n 7, at [113].

[21] Salih, above n 7, at [13].

[22] Shahnaz v Rizwan [1965] 1 QB 390; Qureshi v Qureshi [1971] 2 WLR 518; NA v MOT [2004] EWHC 471 (Fam); Uddin v Choudhury [2009] EWCA Civ 1205.

[23] A costs award against her, beyond the shield of her legally aided status is unlikely, given the nature of the proceedings and their precedent value.

[24] Salih, above n 7, at [25].

[25] Talaq divorce is husband-initiated but faskh divorce is wife-initiated for constrained categories of misconduct.  In summary the factual battle is over which type of divorce is applicable at Sharia law.

 

 

 

 

 

 

 

 

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