The Enforceability of A Nikah.
The Court of Appeal delivered its first judgment regarding the enforceability of a nikah, which is an Islamic marriage contract under which the husband is required to provide a gift (mahr) to the wife.
Stephanie Irons, SENIOR ASSOCIATE in the private wealth team Discusses
This case came about when Mr Salih, and his former wife Ms Almarzooqi, had divorced and were in a disagreement regarding the payment of the mahr.
The case is a fascinating example of the intersection between Islamic law and New Zealand law. The judgment considers a number of issues, with the focus being the proper law of the nikah.
My practice area in private wealth draws my attention to a point which may seem minor – comprising a mere 5 paragraphs of a 116 paragraph judgment. But in my view, it is significant.
Was the nikah an agreement purporting to contract out of the Property (Relationships) Act 1976 (PRA)?
The Court found that it was not, on the basis that “not every contract between domestic partners relating to property will be subject to the PRA, or constitute a contracting out agreement”.
In this case, the Court found no basis on which it could conclude that the agreement was entered into for the purpose of contracting out of the PRA or that it was purporting to do any of the things defined in s21F of the Act.
This was despite the fact that it was an agreement relating to the property of the parties as a result of their marriage (and subsequent separation).
The Court did note that the question as to whether an agreement falls within the scope of s21 of the PRA is a question of fact. The Court expressly left open the possibility that a nikah entered into in different circumstances or on different terms could be found to be a purported contracting out agreement or taken into account when making other determinations under the PRA.
The significance of this decision boils down to the lack of safeguards for individuals entering into contracts with their domestic partners that are found to fall outside the scope of the PRA.
In order for a contracting out agreement to be valid, each party must be independently advised and their solicitor must certify that they have explained the meaning and effect of the agreement.
The purpose of these stringent requirements is to ensure that the more vulnerable party gets a fair deal (or at least understands what they are foregoing).
For a contract that the Court finds to fall outside the scope of the PRA, that vulnerable party will have lost that protection.
In case you were wondering – the Court allowed the appeal of Mr Salih against the decision requiring him to pay mahr to Ms Almarzooqi and remitted the case back to the High Court for reconsideration.
If you feel you could use some specialist advice, don’t hesitate to contact the Trusts & Wealth Protection Team.
