In a groundbreaking ruling, one of New Zealand’s higher courts, the Court of Appeal, has addressed the enforceability of Islamic marriage contracts for the first time. The court ordered a re-hearing of a case involving a Muslim couple and their marriage agreement, marking a significant legal development.
The couple, who married in the United Arab Emirates (UAE) a decade ago and later divorced in 2016 but continued to reside in New Zealand, had a nikah, or marriage contract. According to the terms, Rafid Salih was obligated to pay his ex-wife, Rahla Almarzooqi, approximately NZ$230,000 upon death or divorce.
Explaining the concept, the Court of Appeal judgment stated, “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 case centers on determining which law is most applicable: UAE law, New Zealand law, or Sharia law. A Dubai court found Salih mistreated his wife and ordered him to pay in full. However, his legal team argued that he should only be liable if Almarzooqi can substantiate her allegations in a New Zealand court.
While the High Court initially ruled the contract should be considered under UAE law, the Court of Appeal overturned this decision. The court asserted that the nikah should be interpreted under New Zealand law, with expert testimony on Sharia law principles to inform the court.
“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 stated in its recent judgment.
This landmark decision sets a precedent for the enforceability of Islamic marriage contracts in New Zealand, opening the door for a nuanced understanding that incorporates cultural and religious contexts. The re-hearing of the case in the High Court will further clarify the legal implications of this ruling.