According to their Nikah, or marriage contract, Salih had to pay Almarzooqi a dowry of NZ$12,700 at the start of their marriage and a dower of about NZ$212,000 if they were to divorce or if he died.
Within about half a year of getting married, the couple had separated, Almarzooqi went back to Dubai to apply for a divorce, and Salih was ordered by the Dubai court to pay the dower, as well as alimony and housing support.
Almarzooqi then took the case to the New Zealand High Court, where Associate Judge Johnston said the Dubai court did not have jurisdiction in New Zealand to enforce the order.
Almarzooqi then appealed the decision in the Court of Appeal.
The Court of Appeal clarified if Judge Johnston had found the Dubai court had jurisdiction in New Zealand he would have granted Almarzooqi’s common law application for enforcement of the judgement.
Almarzooqi then took the matter back to the High Court, where Justice Simon France ordered Salih to pay the dower. The matter was called in the Court of Appeal in Wellington today where Salih’s lawyers argued against the decision.
Lawyer Paul Michalik asked the judges to engage in a “thought experiment”, imagining if the Islamic law factor was removed and the genders were flipped.
He asked them to imagine a young woman who “wanted to demonstrate her passionate love for the chap”.
“It’s not impossible to imagine in those circumstances she might say look if we divorce I’m not going to take anything. It’s possible to imagine she might go further . . . if we divorce, I’ll pay you $200,000,” he said.
“That agreement would not be enforceable.”
He said to be enforceable it would need to adhere to rules under the Property (Relationships) Act 1976, which states agreements made to split relationship property in a way other than the standard method must be made in a written agreement signed by both parties and witnessed and signed by a lawyer.
The parties must also have received independent legal advice and the witnessing lawyer must certify that he or she explained the effect and implications of the agreement to them.
Michalik also argued the written agreement made in Dubai also acted as their ceremony of marriage, under cultural traditions, and that the Domestic Actions Act 1975 says agreements to marry cannot be enforced as a contract, wherever in the world they are made.
“The principal error the High Court fell into was to treat this as a contract like any other . . . the judge was probably ignorant of what is a rather obscure act. "
He said Almarzooqi hadn’t gone to religious authorities to enforce the dower payment, but instead had approached the New Zealand civil courts “and said ‘this is just a contract like any other, enforce it like it’s the commercial purchase of a load of peas’”.
Almarzooqi’s lawyer, Jack Wass, said at an earlier trial on the case, it was common ground between the parties that the agreement was “valid and enforceable in principle”.
“Most of what the appellant seeks to argue really ought not to be entertained at all,” he told the court.
He said one of Salih’s arguments at trial was that the proper law of the contract was New Zealand law informed by sharia principles.
“We say that the concept of New Zealand law being informed by sharia principles is nonsensical.
“The fact that the defendant felt compelled to place that gloss on the applicable law, not to rest on New Zealand law in its own terms . . . demonstrates that this is fundamentally a contract in sharia form.”
He also said the couple went to the UAE “because they wanted a UAE marriage.
“They wanted to be married in a legal system that was familiar with sharia law marriages.”
Almarzooqi and Salih both live in New Zealand. Almarzooqi is a citizen of the United Arab Emirates and has residency status in New Zealand. Salih is an Iranian and New Zealand citizen.
The judges have reserved their decision.
