Salih v Almarzooqi

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 15 December 2023
• Neutral Citation: [2023] NZCA 645
• Court: Court of Appeal
• Docket Number: CA309/2022

[2023] NZCA 645

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Courtney, Collins and Thomas JJ

CA309/2022

Between

Rafid Mohammed Salih

Appellant

and

Rahla Hussein Amin Harder Almarzooqi

Respondent

Counsel:

P W Michalik and M V Smith for Appellant

JLW Wass and M Freeman for Respondent

Contract, Family, International — enforceability of a nikah — Islamic marriage contract, under which the husband was required to provide a gift (mahr) to the respondent — parties married in the United Arab Emirates — enforcement of the nikah in overseas jurisdictions — interpretation of the nikah and proof of entitlement to mahr — conflict of laws — Sharia law — res judicata — Domestic Actions act 1975 — Property (Relationships) Act 1976

The issues were: whether the Judge erred in finding that the proper law of the nikah was UAE law, if yes, whether the nikah was unenforceable under NZ law by reason of the Domestic Actions act 1975 (“DAA”), the Property (Relationships) Act 1976 (“PRA”) and/or public policy considerations and whether A was entitled to rely on the factual findings made by the Dubai court.

The Court held NZ had the closest and most real connection with the contract. The parties intended to live in NZ permanently so the contract, including payment of the mahr was, or was most likely, to be performed in NZ. The form of the nikah was universal in Muslim countries and a nikah was enforceable in NZ, where the law was capable of recognising Sharia law concepts as part of the factual matrix of a contract.

The nikah was not unenforceable by reason of the DAA or the PRA. The nikah was not a contract that offended s5 DAA (action for breach of promise of marriage abolished). It 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. Not every contract between domestic partners relating to property would be subject to the PRA or constitute a contracting out agreement. There was no basis on which to conclude that the nikah was entered into for the purpose of contracting out of the PRA. It was in a form that was used universally and which was prepared in the UAE without reference to the PRA.

The nikah was not unenforceable for public policy reasons. The principle that a contract between spouses made while they were living together and which provided for separation at some future time was void as being against public policy did not apply in light of the United Kingdom Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534. The nikah was enforceable under NZ law and expert evidence as to the cultural context in which the contract was entered into may be relied on to interpret its meaning.

A was not entitled to rely on the factual findings made by the Dubai court. In the context of A's attempt to enforce the decision of the Dubai court in NZ, it was determined that S had not submitted to the jurisdiction of that court. That finding could not be challenged. The effect of it was to preclude A being able to rely on the factual findings of the Dubai court as a res judicata. If the HC ultimately found that, properly interpreted, the nikah required S to pay the mahr only upon proof of his misconduct, A would need to prove that fact.

The appeal was allowed. The case was remitted to the HC for reconsideration.

• A The appeal is allowed.

• B The case is remitted to the High Court for reconsideration in accordance with this decision.

JUDGMENT OF THE COURT

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

1 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.

2 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.

3 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 obtained an order for payment of the deferred mahr in full. Ms Almarzooqi brought proceedings to have the latter recognised and enforced in New Zealand by summary judgment and, in the alternative, to enforce payment under the nikah directly.

4 The summary judgment application was determined first and was unsuccessful. 2 Ms Almarzooqi then advanced her claim for payment of the mahr. The issues for determination were the proper law of the contract, whether the mahr had become payable under that law and if so, whether the Court should reduce the amount payable on public policy grounds. In the High Court Mr Salih accepted the validity of the divorce but maintained that Ms Almarzooqi had to prove her allegations of misconduct in a New Zealand court and could not rely on the factual findings of the Dubai court.

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. 3 He entered judgment against Mr Salih for the full amount of the mahr, to be assessed in New Zealand dollars. Mr Salih appeals.

Issues on appeal

6 Although Mr Salih still maintains that Ms Almarzooqi must prove the allegations against him and cannot rely on the factual findings of the Dubai court, he sought to advance new arguments on appeal. He asserted, for the first time, that there was no intention to be contractually bound. He also sought to argue that the nikah is not enforceable in New Zealand because it (1) is prohibited by the Domestic Actions Act 1975 (DAA) or (2) purports to contract out of the Property (Relationships) Act 1976 (PRA) but is void because it does not comply with the requirements of s 21F of that Act and (3) is void at common law.

7 There is a dispute as to whether these issues, raised for the first time in this Court, should be considered. This dispute is reflected in the questions the parties identified for determination:

• (a) In relation to section 5 of the DAA:

  • (i) Is Mr Salih entitled to rely on that section on appeal in circumstances where it was not pleaded or argued in the High Court?

  • (ii) If the answer is yes does that section bar Ms Almarzooqi's claim to enforce the contract to pay the mahr?

• (b) Was the Judge right to conclude that the nikah was governed by UAE law or should he have concluded that the contract was governed by New Zealand law?

• (c) If the Judge was right on question (b) and UAE law governs the nikah, was he nevertheless wrong to conclude that under UAE law, Mr Salih was obliged to pay the mahr once the parties were irrevocably divorced, such that Mr Salih was in breach of the contract?

• (d) If the Judge was wrong on question (b) and New Zealand law governs the nikah:

  • (i) Is Mr Salih entitled to rely on the PRA on appeal?

  • (ii) If so, does the PRA bar Ms Almarzooqi's claim?

  • (iii) Is Mr Salih entitled to argue that the parties did not intend to enter binding legal relations?

  • (iv) If so, does it follow that Ms Almarzooqi's claim to enforce the nikah as a contract must fail?

8 Mr Wass, for Ms Almarzooqi, submitted that Mr Salih should not be permitted to advance the new arguments because they were not raised on the pleadings, nor in argument in the High Court, and there had been no application to amend the pleadings. In addition, Mr Wass asserts that raising these issues now would amount to resiling from the concessions made at trial that the claim to enforce a mahr is contractual in nature and a nikah is, in principle, enforceable in a New Zealand court.

9 In written opening submissions in the High Court, counsel for Mr Salih (not Mr Michalik) made the following concessions: the correct characterisation of the claim is in contract; in principle a deferred mahr is recoverable under New Zealand law provided the grounds of liability are established and in the circumstances an award would not offend conceptions of New Zealand public policy; the dispute should be determined by the application of New Zealand contract law informed by principles of Sharia...