The mahr was usually of monetary value and was given in part before the marriage and in part upon either death or divorce, known as the “deferred” mahr, the Court of Appeal decision said.
Three years after marrying, the relationship broke down with Almarzooqi claiming her husband mistreated her, and the couple divorced though both remained in New Zealand.
In this case, which is the first of its type to come before the Court of Appeal, the nikah provided for a deferred mahr, which was equivalent to $230,000.
Almarzooqi obtained an order from the Dubai Personal Matters Court that Salih pay her the mahr in full and have that recognised by a New Zealand summary judgment, which was unsuccessful.
In the High Court, Salih accepted the validity of the divorce but maintained Almarzooqi had to prove her allegations against him in a New Zealand court and could not rely on the factual findings of the Dubai court.
The New Zealand court found that Salih must pay the full amount of the mahr to his ex-wife.
Salih has now taken the matter to the Court of Appeal, claiming the nikah was not enforceable in New Zealand due to the country’s Domestic Actions Act.
The decision states a wife may ask for a divorce with the husband’s prior consent, known as a khul divorce, which would excuse the husband from paying the mahr.
Salih and Almarzooqi discussed the prompt mahr before they married and Almarzooqi asked for about $53,800 which Salih agreed to.
However, Salih later told Almarzooqi he could only afford $10,700 which she accepted.
Salih gave the money to Almarzooqi’s father when he arrived in Dubai for the wedding but the father gave it back to him for the couple to use to establish themselves.
Salih described the circumstances in which the nikah was signed. He said Almarzooqi’s male relatives were present but he did not have any family present.
He said there was no discussion of the deferred mahr but Almarzooqi’s father instructed the “sheikh” who married the couple to write the figure down as approximately $230,000.
Feeling “helpless, pressured” and “extreme embarrassment” Salih signed the nikah.
The Court of Appeal decision stated that “great care” was needed when interpreting a contract made within a particular cultural context.
The Court found that provided the nikah satisfied the pre-requisite for an enforceable contract, the fact it was entered into in the context of a religious ceremony should not prevent it from being enforced as a contract of civil law.
“It is evident that the nikah is, by tradition, an agreement reached between parties to an Islamic marriage who understand that it is intended to create a solemn moral obligation.
“If, however, the requirements of a valid contract are met, there is no reason that this obligation should not also be held to be legally binding at civil law,” the decision states.
The Court of Appeal found that because of the limited evidence available, the proper course was to remit the matter back to the High Court for further consideration.
“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.”
It also found that Almarzooqi may not rely on the factual findings of the Dubai court in enforcing the nikah.
Salih’s appeal was allowed, and the case was sent back to the High Court for reconsideration.
Emily Moorhouse is a Christchurch-based Open Justice journalist at NZME. She joined NZME in 2022. Before that, she was at the Christchurch Star.
