The Court of Appeal this month ordered that a case about a Muslim couple and their marriage agreement be re-heard by the High Court. Photo: RNZ / Dan Cook
One of New Zealand's higher courts has for the first time had to consider the rules around Islamic marriage contracts.
The Court of Appeal this month ordered that a case about a Muslim couple and their marriage agreement be re-heard by the High Court.
The former couple were married in United Arab Emirates (UAE) a decade ago, and both continue to live in New Zealand as they intended at the time of their wedding - despite their divorce in 2016.
The terms of their nikah, or marriage contract, stated Rafid Salih would be required to pay his wife Rahla Almarzooqi about NZ$230,000 upon his death or divorce.
"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)," the Court of Appeal judgment explained.
"It is the first time the question of enforceability of a nikah has been considered by this Court."
The case hinges on which law is most applicable - UAE law, New Zealand law or Sharia law.
A court in Dubai found Salih mistreated his wife, and ordered him to pay in full. However, his lawyers argue that he should only be liable if Almarzooqi can prove her allegations of misconduct in a New Zealand court.
The High Court earlier ruled the contract should be considered under the UAE law, because that was where the couple chose to be married.
"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," a judgment from May last year said.
"[Salih] 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."
It noted UAE law was sourced in Sharia law. Justice Simon France also found the nikah would be similarly enforceable and the mahr payable, if New Zealand law applied.
However, the Court of Appeal has ruled the nikah should be considered under New Zealand law, instead of relying on the findings of the Dubai court. Experts could help inform the court of the relevant principles of Sharia law.
"The nikah is enforceable under New Zealand law and expert evidence as to the cultural context in which the contract was entered into may be relied on to interpret its meaning," the court said in a judgment this month.
"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."
