In our now multicultural society, courts are often faced with deciding on religious issues that they may not have dealt with, let alone heard of, in the past. One such issue that courts are now seeing more of is the Islamic Mahr (a.k.a. Maher, Meher, Mehr), which can become very contentious for many Muslim couples going through a divorce.
A Mahr is typically part of a pre-nuptial agreement (what we family law practitioners refer to as a “marriage contract”).
The purpose of the Mahr is to provide the wife with independent financial security, whereby this amount becomes her exclusive property. A Mahr requires an agreed-upon sum or other asset or property to be paid or transferred from the groom to the bride, either on a specified date, on the occurrence of a specified event, or without any date or event specified. The differences of amount and payment date vary from culture to culture, and can also vary based on what the couple themselves negotiate and agree upon.
It is important to note that the marriage contract dealing with the Mahr is always entered into prior to the marriage. The questions that arise in family law are whether, and if so, how Ontario courts will enforce what may seem to be a purely religious obligation.
While it was not always so, recent trend in Canadian case law points to courts being more willing to enforce Mahr clauses without prejudicing the spouse’s rights to support and equalization. In order to do so, they effectively treat it as a marriage contract subject to Ontario rules and requirements. Therefore, rather than labelling it as a religious obligation, courts view it as a contractual right, provided that it meets the legal requirements of being voluntarily entered into, in writing, signed by both parties, and witnessed.
The 2011 Court of Appeal case of Khamis v. Noormohamed sheds some further light on the issue of the Mahr. The husband in this case appealed the trial judge’s decision that the Mahr was enforceable and he therefore had to pay $20,000 in addition to an equalization payment. The husband argued that the $20,000 should be reduced from his net family property.
In the trial judge’s decision, she reiterates that the Mahr was in writing and signed by both parties and witnessed which existed on the date of marriage. The terms of the Mahr in that particular case did not release the wife’s rights under the Family Law Act to pursue an equalization claim. As such, the trial judge held that the husband understood the promise he made and it was therefore binding upon him.
The Court of appeal felt that there was no basis for interfering with the trial judges’ analysis or conclusion.
Although this may seem somewhat straightforward, it may not always be so. As this is a new and developing area of the law, there are many complications that can arise in deciding whether and how to enforce such a contract.
It is important to understand that courts have stated they will not embark on a religious analysis to determine the purpose and intent of Islamic sharia law regarding marriage and divorce when enforcing Mahr clauses.
However, it remains to be seen how Mahr might be enforced if the parties were married in a foreign jurisdiction. For example, it may be problematic if the contract does not specify that it is to be enforced in addition and without prejudice to a spouse’s rights available under family law. Or, perhaps it can be argued that the parties did not contemplate being subject to Canadian support and equalization laws when having drafted the marriage contract. Another example may be if the stated value of the Mahr is so high that it may be unconscionable to enforce it.
As the issue of Islamic marriage contracts slowly but surely makes its way into Ontario family law, parting spouses who may be affected by it should definitely speak to their counsel about its enforcement.
If you require information on how a court may deal with an Islamic marriage contract or any other issue related to your separation or divorce, please contact us at 905-415-1636 to book a consultation. Thank you for watching and I’ll see you next time!