Hello. My name is Jeffrey Hart and I am a lawyer at the Feldstein Family Law Group.
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, 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 upon which they agree.
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.
In the 2017 Court of Appeal case of Bakhshi v. Hosseinzadeh, the judge shed some light on the issue of the Mahr Agreement. In this case, the parties entered into an Islamic marriage contract in Iran and then immigrated to Canada. Mahr contained clause requiring husband to pay wife 230 gold coins on her prompt request. After 18 years of marriage, wife brought application in Ontario for divorce, custody, child support, equalization of property, and other relief. Pursuant to the Family Law Act, the trial judge ordered the husband to pay the wife $187,075 and post-separation adjustments of $44,449.93. The Judge found that the value of 230 gold coins was $79,580 and concluded that the value of Mahr was to be excluded from the calculation of net family property and added it to the equalization payment. The husband successfully appealed.
Because the Mahr did not include terms which specifically excluded the gold coins from the husband’s net family property, the Mahr payment should have been included in this calculation, which reduced the husband's net assets and increased the wife's net assets, resulting in an equalization payment of $36,520 to the wife.
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 905-581-7222 to book a free initial in-office consultation. Thank you for watching and I’ll see you next time!!!