Enforcing a Nikah (an Islamic marriage contract)

In December 2023, the Court of Appeal delivered its decision on Salih v Almarzooqi [2023] NZCA 645, an appeal concerning the enforceability of a nikah (an Islamic marriage contract) under New Zealand law.

In a nikah, the husband is required to provide the wife with a mahr (a gift). The mahr typically holds monetary value and is given in part before the marriage (the "prompt" mahr) and in part on the wife's death or on divorce, whichever comes first (the "deferred" mahr).

Background and Issues

In 2013, Mr Salih and Ms Almarzooqi were married in a traditional Islamic ceremony in Dubai, in the United Arab Emirates ("UAE"). The marriage included the signing of a written nikah. The nikah provided for a deferred mahr equivalent to $230,000.00 NZD. The marriage was one of short duration (three years), with the parties now divorced.

The issue in this case was whether the nikah is legally enforceable in New Zealand or whether the Domestic Actions Act 1975 ("DAA") prohibits it or whether it does not comply with the requirements of section 21F of the Property (Relationships) Act 1976 ("PRA") and so is void.

Result

The Court of Appeal concluded that:

1. The nikah is enforceable under New Zealand law.

2. Section 5 of the DAA cannot be relied on in relation to a nikah as it is not an agreement to marry but an agreement entered into upon marriage to take effect in part immediately and in part at the end of marriage.

3. The nikah did not amount to a Contracting Out Agreement finding that there was "no basis on which to conclude that the nikah was entered into for the purpose of contracting out of the PRA or that it purported to do any of the things that a section 21 agreement may do under s21D".

The case was remitted to the High Court for reconsideration as there was insufficient evidence before the Court to interpret the nikah, particularly to determine whether the nikah requires Mr Salih to pay the mahr only if Ms Almarzooqi can prove his misconduct. The High Court may rely on expert evidence in respect of the cultural context in which the nikah was entered into.

Effect on the Property (Relationships) Act 1976

Importantly, this case highlights the possibility that a nikah may, in some circumstances, constitute a section 21 agreement or Contracting Out Agreement pursuant to section 21 of the PRA. While the judgment does not go on to explain what circumstances would result in a nikah being considered a Contracting Out Agreement, the Court referred to Canadian cases where parties specifically sought to recognise the existence of statutory rights governed by legislation similar to the PRA. The Court also noted that if a nikah addressed provisions such as sections 9(4), 13 or 15 of the PRA (which deal with separate property, extraordinary circumstances, and economic disparity, respectively), extensive consideration would be required as to the principles to be applied and this may warrant the input of interveners.

The Court of Appeal held the nikah can be an enforceable contract in New Zealand. However, the case did not deal with whether an oral marriage contract is enforceable. While the facts of this case did not relate to an oral nikah, one of the Canadian cases referred to within the Court of Appeal judgment, Nasin v Nasin 2008 ABQB 219, dealt with an oral nikah and whether the mahr was enforceable in relation to the division of relationship property under the equivalent PRA legislation in Alberta (Matrimonial Property Act). In that case, the Alberta Court of Queen's Bench held that the mahr was an oral contract and a prenuptial agreement for the proposes of the Alberta Matrimonial Property Act. However, ultimately it was unenforceable as it did not satisfy the requirements of the Alberta Matrimonial Property Act, such as receiving independent legal advice.

In New Zealand, the PRA gives the Court the discretion to validate an agreement that is not compliant with the requirements of the PRA. This then leaves the possibility that New Zealand Courts may be able to validate an oral nikah pursuant to section 21H of the PRA.

If you and your partner intend to enter into a nikah, it is important that you consult a lawyer to advise you of the possible effects and implications of that agreement and your property rights should you and your partner separate. If you and your partner have already separated and you have entered into a nikah, a lawyer can also advise you on what that means for your relationship property entitlements.

If you have any enquiries relating to relationship property and other family-related legal services, please contact:

Peter Fuscic (Partner)

DDI: 09 306 6746

Email: pfuscic@mcveaghfleming.co.nz