1 Enforcing Mahr in the Canadian Courts By Fareen L. Jamal

Volume 24, No. 3 - June 2012 Family Law Section

Enforcing Mahr in the Canadian Courts

By Fareen L. Jamal

Ontario family lawyers have been educated about the Jewish “get”. Since the Supreme Court of Canada heard

Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607 ("Bruker"), the terms “get”, “agunah” and “mamzer” are

known and understood by family law lawyers. In fact our provincial and federal legislation deals with the

removal of religious barriers to remarriage as a consequence of the “get”.

Many family law lawyers, however, are not familiar with “mahr”, “kafala” or other Muslim family law concepts.

Lawyers who practice without an awareness of these foreign family law concepts are doing their Muslim clients a

disservice. For Muslim clients, religiously based marriage agreements are common, but often lawyers are

unaware of their existence or implications.

Mahr (also spelled Maher, Mohr and Mehr) is a Muslim tradition in which an agreement is entered into prior to

marriage concerning a sum of money that a groom promises to pay his bride in the event of a marriage breakdown

or death.

The Encyclopaedia of Islam [E.J. van Donzel et al., eds., The Encyclopaedia of Islam, new ed., vol. 6 (Leiden: E.

J. Brill, 1991) p. 78.] defines mahr as “the gift which the bridegroom has to give to the bride when the contract of

marriage is made and which becomes the property of the wife

.” [emphasis added]

A husband is obliged to pay this sum to his wife. It provides some financial security for the wife. There is a

prompt mahr (muajjal), which is paid at the time of the marriage, and deferred mahr (muwajjal), to be paid only if

the couple divorces or husband predeceases the wife. It is common for the bulk of the mahr to be deferred, both

because young husbands do not have the finances to pay a large sum up front and because many wives see a large

mahr as only necessary if their husbands are no longer supporting them. Where it is not specified which part is

prompt and which part is deferred, Sunnis and Shias differ: Shias regard the whole mahr as prompt, and Sunnis

regard one-half of the amount as prompt and the other half as deferred.

The mahr is not considered the settlement of all future financial dealings between the couple in the event of

divorce or death. In fact, the Qur'an, the laws of several Muslim countries, and several schools of thought, state

that the wife is entitled to maintenance and any of her own property in addition to the mahr upon divorce.

In Islam, doctrinal dispute is expected, as Islam offers no hierarchical authoritative interpretation of religious

principles. There are several different schools of thought, which sometimes differ in aspects of their interpretation

of the mahr agreement. Individuals are not bound to one Islamic school of thought but have the right to switch to

different schools on different issues.

The Supreme Court of Canada in 2007 in Bruker, which dealt with an agreement by a Jewish man to give his

former wife a get, held that the fact that a dispute had a religious aspect did not make it non-justiciable.

Individuals can convert their moral obligations into legally binding obligations (as long as the object of the

contract is not prohibited by law or public policy). The Supreme Court overturned the Quebec Court of Appeal,

which had held that the court should not get into the “religious thicket”, and that these were not civil obligations

but “le devoir morale, le devoir de conscience”. In Bruker, the Court held that it would order the fulfillment of

undertakings provided for in religious marriage contracts if the requirements for a civil contract under the

provincial legislation were met. The husband paid the wife damages for failing to comply with a freely negotiated

agreement.

Marriage in Islam is a Contract

It should be emphasized that marriage in Islam (and also in Judaism) is a civil contract. There is nothing sacred

about the solemnization of marriage as is familiar with the Christian traditions. Although Muslim wedding

ceremonies often have a religious component, this is not essential for celebration of an Islamic marriage.

Moreover, unlike in Christianity, in which the sacrament is indissoluble except in very rare circumstances, a

Muslim marriage may be brought to an end by a simple divorce. The Quran itself speaks about divorce and the

fair treatment of divorced wives.

Courts that have found that Islamic marriage or mahr is a ‘religious’ agreement misunderstand the nature of

Islamic matrimonial culture. Canadian and English customs of marriage are more religious in character, despite

the secular nature of their legal systems.

Until the legislatures in Canada enacted modern matrimonial property legislation, prenuptial agreements

purporting to deal with marriage breakdown were unenforceable on public policy grounds, since they undermined

the institution of marriage. Mahr and Muslim marriage contracts, however, have been recognized since time

immemorial.

In light of this, mahr is not a matrimonial right. It is not a right derived from the marriage, but is a right in

personam, enforceable by the wife or widow against the husband or his heirs. In a strict contractual sense, the

right is not derived from the marriage, but from a contractual agreement between two consenting adults.

Symbolic Importance of Mahr

Mahr must be paid to the wife herself, and not to her guardian or parents. It provides financial independence and

security to a wife in the event of her husband’s death, or a separation. It recognizes that women are often more

financially vulnerable than men in many Muslim societies, particularly after a divorce.

Since the property belongs to the wife, it is not a bride price. In pre-Islamic Arabia, “bride price” was a

customary payment to the bride’s father. Islam introduced mahr as a payment to the bride for herself absolutely.

Mahr is given by the husband as a mark of respect for his wife-to-be, and to express his love for her. The

payment of mahr is not a condition which affects the validity of the contract, nor is it an essential requisite for

marriage. Therefore, if the mahr is not mentioned in the contract, the contract is still valid. Marriage is not

exactly “consideration” for mahr, nor a gift to the wife to allow intercourse with her.

Mahr is sometimes rendered into English as 'dower,' although this translation is problematic. Dower under the

common law was a husband's contribution to the wife on marriage. However, as married women in England, and

Canada, could not own property until the late nineteenth century, it was only on her husband's death that she was

entitled to any dower - usually a life interest in the husband's estate. This is distinguishable from mahr, which

gives greater recognition to the equality of women than that of ‘dower’. A consequence of the obligation to pay

mahr is that in Islam, a woman is treated as an individual in that she personally receives mahr, and acquires an

independent legal status, denied to her Western counter-parts until the late nineteenth century.

Some courts have referred to mahr as 'dowry': this is entirely inaccurate. In old English law, dowry was the

contribution of the father of the wife to the marriage, paid to the groom. Dowry is not part of the Muslim legal

tradition, while mahr is an integral concept of Muslim marriage law.

The structure of the mahr agreement reflects the inherent purpose of easing financial and social inequities between

the husband and wife. The deferred mahr saves the wife from complete financial destitution if the husband ceases

to support her financially. Upon the husband's death, the deferred mahr is paid from the husband’s estate before

any other debts. It is, in a sense, the wife’s “security deposit” for the marriage in case she suddenly loses her

husband and her means of financial support. And, it is to deter the husband from divorce, by making it more

costly.

The terms of the mahr usually reflect the relative bargaining power and wealth of the parties in the negotiation of

contractual obligations related to the family. The sum can range from a token amount of one dollar to millions of

dollars. Any kind of property may be settled as mahr, including beneficial interests such as benefits from any

business or benefits arising out of any life insurance policy. Sunnis and Shias differ on whether a father is liable

to pay the mahr if his son has no means to pay for it.

Under some Muslim schools of thought, if a wife seeks the divorce, she typically forfeits her right to the mahr,

unless she does so with cause, by proving her husband is at fault. There is a difference of opinion between

scholars regarding when a woman forfeits her right to mahr, if ever. The issues are controversial and complex.

This is further complicated in no-fault divorce jurisdictions, such as Canada. Canadian courts may enforce mahr

agreements irrespective of who initiated the divorce, or why, as the mahr agreements typically contain no

reference to the different forms of divorce. I believe this is an appropriate approach and will inspire reform of the

mahr agreements, if parties still desire these terms.

Judicial Enforcement of Mahr

Canadian courts have been divided on the enforcement of mahr. The challenge has been enforcing Canadian

contract law while remaining sensitive to cultural and religious traditions. Appendix A to this paper is a chart of

select cases outlining how courts have addressed mahr in Canada.

The courts initially refused to enforce “a nominal award in relation to a so-called “mahr” or “morning-gift”,” in

1987, [Vladi v. Vladi (1987), 7 R.F.L. (3d) 337, 1987 CarswellNS 72 (N.S.S.C), para. 11.] and viewed mahr as a

contractual donation which offended gender equity principles in 1991. [M.H.D. c. E.A. (1991), Droit de la famille

-1466, 1991 CarswellQue 221 (C.A.Q.).] The British Columbia Court in 1996, in the case of Nathoo v. Nathoo,

[1996] B.C.J. No. 2720, 1996 CarswellBC 2769 (B.C.S.C.), enforced a $20,000 mahr, and Justice Dorgan stated

at paragraph 25,

"Our law continues to evolve in a manner which acknowledges cultural diversity… Attempts are made to

be respectful of traditions which define various groups who live in a multicultural community. Nothing in

the evidence before me satisfies me that it would be unfair to uphold provisions of an agreement entered

into by these parties in contemplation of their marriage, which agreement specifically provides that it does

not oust the provisions of the applicable law."

In 1998, Ontario still refused to enforce mahr agreements, and in Kaddoura v. Hammoud, [1998] O.J. No. 5054,

44 R.F.L. (4th) 228 (Ont. Gen. Div.), the court held that it should not determine the rights and obligations of the

parties under an agreement providing for mahr, as it would lead the court into the “religious thicket”, as "the

obligation of the mahr is a religious obligation and should not be viewed as an obligation that is justiciable in the

civil courts of Ontario." [paras. 25 and 26]. The Ontario court wrongfully equated mahr to an obligation in a

Christian marriage “such as to love, honour and cherish, or to remain faithful,” [para. 25], and expressed a clear

desire to keep church and state separate under the law (mentioning the United States Constitution, as there is no

codified separation of church and state in Canada).

In 2000 and 2004, two more cases in British Columbia enforced the mahr agreement, of $51,000 and $51,250

respectively, in addition to the division of family assets and spousal support [Amlani v. Hirani, 2000 BCSC 1653,

13 R.F.L. (5th) 1 ["Amlani"], and M. (N.M.) v. M. (N.S.)., 2004 BCSC 346, 26 B.C.L.R. (4th) 80.].

By 2005 in Ontario, courts were “prepared to enter the ‘thicket’ and find that (mahr agreements) represented

more than mere religious significance to the parties and that it did bind them civilly,” [Khan v. Khan, 2005 ONCJ

155, 15 R. F. L. (6th) 308, para. 32]. However, the circumstances in the case before the court in Khan v. Khan, did

not justify enforcement.

In Alberta, in 2008, the court in Nasin v. Nasin, 2008 ABQB 219, 53 R.F.L. (6th) 446, found that mahr was a

prenuptial contract, but not enforceable as the formalities were deficient, including the fact that there was no

written contract about the mahr between the parties. This case highlights that to be enforceable in Canada, the

mahr agreement must be considered a valid “marriage contract” and must be in writing, signed and witnessed. In

addition, there may be issues of disclosure, understanding of the obligations assumed, and absence of duress. In

short, mahr agreements have to meet the provincial contractual validity requirements in order to be enforceable.

The Ontario Court of Appeal in 2011, in Khanis v. Noormohamed, 2011 ONCA 127, 91 R.F.L. (6th) 1.,

confirmed that mahr is indeed enforceable in Ontario. In 2009, the trial judge held that it was a valid marriage

contract under Ontario law, and the Court of Appeal in 2011 confirmed that the terms of the mahr agreement were

valid and binding. The court applied these principles and enforced the mahr in Ghaznavi v. Kashif-Ul-Haque,

2011 ONSC 4062, 5 R.F.L. (7th) 241.

Interestingly, the B.C. court refused to enforce two mahr agreements in 2012, [Aziz v. Al-Masri, 2011 BCSC 985,

[2012] W.D.F.L. 1573, and Delvarani v. Delvarani, 2012 BCSC 162, 2012 CarswellBC 298], and Ontario refused

to enforce the mahr agreement in Yar v. Yar, 2011 ONSC 301 ["Yar v. Yar"](unreported at this time; appeal

pending), in 2011. Before I comment about Yar v. Yar, I wish to highlight some salient points.

The principles enunciated by the courts is that like all domestic contracts, the enforceability of mahr will be

considered in light of the specific facts of each case. The precise wording of the mahr, the circumstances of its

execution (for example, was it executed minutes before the actual wedding ceremony, duress, disclosure), any

facts that would suggest unconscionability, and the provincial legislation regarding prenuptial agreements will

likely inform the analysis.

The courts have indicated what they expect from these agreements in order to enforce them. This has resulted in

more precise written terms in some of these standard form contracts so that they are drafted with enough

specificity to meet the requirements of a valid and binding contract. However, the parties’ bargaining and

subsequent contracting must also meet the voluntariness standards and be conscionable.

Mahr agreements are typically standard form contracts or boilerplate agreements where the parties’ names, details

and mahr amount is handwritten into the agreement. Appendix B is a sample Mahr agreement which is appended

to the Judgment in Amlani v. Hirani. This is an Ismaili mahr agreement. Interestingly, four of the cases in which

mahr was enforced (Khanis v. Noormohamed, M. (N.M.) v. M. (N.S.)., Nathoo v. Nathoo and Amlani v. Hirani)

involved adherents to the Ismaili school of thought who were married in Canada or the U.S. The courts in these

cases awarded the amount of the mahr as an additional benefit for the wife, on top of what she was entitled to if

there were no mahr, in accordance with the terms of their standard Ismaili mahr agreements. As such, the Ismaili

boilerplate agreement is a standard for enforcement, assuming all the other elements necessary for contractual

validity are complied with, including sufficient time to negotiate the terms and understand the obligations

assumed.

Yar v. Yar (2011)

Qasim Yar and Roya Yar, both medical doctors, were married in a civil ceremony in England in 1991, and an

Islamic marriage ceremony in Germany in 1993. They separated after 13 years. The mahr agreement provided for

a payment of $741,643 and was a boilerplate contract with vague enforcement provisions. In order to interpret

the agreement, the court required parol evidence from the parties to flesh out the terms of the skeletal agreement,

and opinions from experts in Islamic law. Interpreting the boilerplate mahr provisions in this way may have

instead confused the parties’ original intent.

The court accepted the opinion of one expert over another and held that “the Islamic marriage between the parties

is void as it was conducted under circumstances that contravene Islamic law

… (as they) were married during this

period of time without performing a marriage based on Islamic law… and (the Respondent was) an atheist and

had relinquished his Islamic faith.” (paras. 14 and 15; emphasis added). The court proceeded to state, “according

to Islamic law, a Muslim woman can only marry a Muslim man. If a woman marries a non-Muslim man, all

conditions attached to the marriage contract become null and void.” (para. 16; emphasis added)

The court further found that the parties had no intention of performing an Islamic marriage, and the purpose of the

marriage was not to fulfill a religious requirement

but to satisfy the bride’s father: the Islamic marriage was

“staged for ostentatious reasons rather than for religious purposes

” (para. 19) and the amount claimed for Mahr

of $741,643 (CDN) was “completely out of line and unreasonable.”

The court finally held, “if I am in error with respect to the validity of the Islamic marriage, then the amount that

the husband paid for the wedding ceremony ($30,000 plus a mink coat) at the time of the marriage is sufficient to

satisfy his obligations under the Maher.” (para. 20; emphasis added)

In Yar v. Yar, the court is deeply entangled in the “religious thicket” in determining whether or not a contract

“contravenes Islamic law”, and by independently determining religious doctrine. The contract met all Ontario

legal formal requirements, was voluntarily entered into, was understood by the parties, and was negotiated. By

abstracting the purely secular principles of law, the mahr should have been enforced. It appears that the

“exorbitant” amount may have persuaded the court against enforcement, but the decision creates a precedent for

inter-faith marriages. Moreover, the court misunderstands marriage in Islam and implies a “sacramental” element

by suggesting a “religious purpose” of marriage in Islam.

This case highlights the use (and misuse) of expert witnesses to provide accurate interpretations. These expert

men often confuse their cultural beliefs with accurate interpretations of Islam, and fail to advise the courts of

variations in schools of thought. The judge, relying on the expert’s opinion, may not realize that this is just one

interpretation of Islamic law, and may create binding precedents representing only one school of thought. Courts

can become inappropriately entangled in varying interpretations of Islamic law, and worse choose between

different Islamic schools of thought, as the court did here – resulting in inconsistent and misleading precedents.

The differences of opinion regarding the various Islamic schools of thought and differing geographic traditions

make it difficult for courts to know who constitutes a reliable source. In my opinion, a judge should have a basic

understanding of what mahr is, such as outlined in this article, but it is best for courts to use only the explicit

terms of the agreement, abstract secular principles of law, and a judge’s equitable inclinations in interpreting the

agreement.

As interfaith marriages increase in number, there is a development within various Islamic schools of thought,

which sanction the interfaith marriage between a Muslim individual and a non-Muslim individual.

Regardless, Mr. Yar voluntarily entered into the mahr agreement (and perhaps represented that he was in fact still

Muslim). He knew its terms: he agreed to those terms. The sequence of events does not impact or undermine the

validity of the contract or the marriage. Having entered into a contract that satisfies the contractual validity rules,

when the question of enforcing the payment of the mahr arises, the husband cannot plead its terms are now

unconscionable and say by way of defense that the amount was excessive and beyond his means. Whether the

husband was a non-Muslim, a non-practicing Muslim, or an atheist, the mahr agreement should have been

enforceable as a contract: it is a valid contract pursuant to the provincial rules of validity.

Mahr and Other Claims Under Family Law Legislation

Mahr has been enforced in addition to the equalization claims pursuant to provincial laws, and in addition to

support claims under family law legislation. There is strong support for this approach in most Muslim

communities as this is the most representative of the mahr’s true intention.

In particular, the four Ismaili cases in which mahr was enforced had marriage contracts which included the words

"in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the

land", which is typical of the Canadian Ismaili standard form mahr agreement. The courts in these cases awarded

the amount of the mahr as an additional benefit for the wife, on top of what she would get if there were no mahr.

When entered into in Canada, mahr agreements contemplate bargaining in addition to default divorce laws, with

expectations of Canadian enforcement. When formed in other countries, Muslim parties most likely do not

anticipate litigating in Canadian courts and confronting the equitable property division laws. Courts are then

faced with whether to enforce the mahr as supplemental to the claims under the family law legislation, when the

mahr agreement does not have a provision stipulating this.

Of note, the Ontario Court of Appeal in Khanis v. Noormohamed, held that the trial judge was correct in

excluding the mahr from the wife's net family property; otherwise, treating it as an asset by the wife and a liability

by the husband would render the contract meaningless.

Mahr agreements should not be applied to exclude a wife from traditional property division upon dissolution of

marriage, unless this was specifically stated. Even in these cases, if the wife is in a vulnerable financial position

and the mahr amount is small, it would be unconscionable not to set aside the agreement entirely as the wife

would not receive an adequate share of marital property or appropriate support. The wife would then be in the

exact financial position that the mahr was specifically designed to avoid.

An award of mahr may have an indirect bearing upon a wife’s claim for spousal support, if the assets are

significant and/or have possible income earning potential. In this case, I argue that Mahr awarded should be a

factor considered in the location of the range of spousal support, but should not terminate spousal support. A

husband should not claim absolution from his obligation to spousal support, unless the quantum of mahr paid is a

reasonable substitute and provides enough support to enable the wife to become self-sufficient.

The Virginia case of Chaudhary v. Ali, No. 0956-94-4, 1994 Va.App. LEXIS 759, is an unusual example of a

husband seeking to enforce a provision of the marriage contract, as a single lump-sum payment, which would free

him from future alimony obligations. The Virginia Court of Appeals refused to enforce the 'nikah nama,'

covering spousal support, as it failed to comply with Virginia's laws on ante-nuptial contracts. The court decided

that the contract was not negotiable, required no disclosure of assets, and the wife received no legal advice prior

to agreement. These safeguards were expected even though the agreement was made in Pakistan, and it was

unlikely that a party living in Pakistan would obtain legal advice from an American lawyer. There was also no

discussion of matrimonial culture in Muslim countries, where disclosure of assets is not expected.

Conflict of Laws

According to s. 15 of Ontario’s Family Law Act, R.S.O. 1990, c.F.3, the property rights of spouses arising out of

the marital relationship, are governed by the internal law of the place where both spouses had their last common

habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of

Ontario.

Canadian principles of validity of contract determine if the contract should be enforced. Pursuant to s. 58 of the

Family Law Act, the manner and formalities of making a domestic contract and its essential validity and effect are

governed by the proper law of the contract, except that:

(a) a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and

enforceable in Ontario if entered into in accordance with Ontario's internal law;

(b) s. 33(4) (setting aside provision for support or waiver) and s. 56 apply in Ontario to contracts for

which the proper law is that of a jurisdiction other than Ontario; and

access to children is not enforceable in Ontario.

There is no tradition in Islam requiring disclosure of assets or the seeking of legal advice prior to matrimony.

There is usually no formal disclosure of financial information, other than what can be generally inferred from

each family's status within the community and their job titles. These are not factors many Muslims contemplate at

the time of the agreement's formation, and these requirements are clearly at odds with Muslim practice,

particularly in other countries.

Conclusion

Some Muslims in Canada separate and divorce, and some Muslim husbands die before their wives. It is

imperative that family law lawyers and judges understand the concept of mahr. A woman should have the benefit

of her bargained-for agreement. A spouse who chooses not to honour his agreement to pay mahr should not be

condoned for this reprehensible conduct. Given the diversity in Canadian Muslims, courts interpreting Islamic

marriage contracts cannot assume one set of norms. Contractual law principles must also be given appropriate

consideration. Deciding whether to enforce a mahr agreement, the courts should continue to evaluate each case

on its merits to determine the most equitable solution.

*By Fareen L. Jamal, Bales Beall LLP

APPENDIX A – CHART OF SELECT MAHR CASES

Case

Mahr

Amount

Mahr

Enforced

Comments/ Quotable Quotes

Vladi v. Vladi

(1987), 7

R.F.L. (3d)

337, 79 N.S.R.

(2d) 356, 196

A.P.R. 356, 39

D.L.R. (4th)

563, 1987

CarswellNS

72, (N.S.S.C).

UNKNOWN NO

Nova Scotia. Equalization payment of $246,500 paid instead of enforcement of

mahr (determined as either/or in this case).

The court refused to enforce mahr on the basis of ‘substantial justice’, and

invoked the doctrine of renvoi in this interesting case.

"In Iran, a wife in the position of Mrs. Vladi would be entitled to minimal

support and a nominal award in relation to a so-called “mahr” or “morning-

gift”. Otherwise she would have no direct claim against assets standing in the

name of her husband. (para. 11)”

“To put it simply, I will not give effect to Iranian matrimonial law because it is

archaic and repugnant to ideas of substantial justice in this province. (para.

30)"

M.H.D. c. E.A.

(1991), Droit

de la famille -

1466, 1991

CarswellQue

221 (C.A.Q.).

UNKNOWN NO Quebec. Gender equity principles were discussed.

“With all due respect to the beliefs of the religious authority as well as to those

of the husband, the court believes that such traditions, customs and doctrine put

before us are not applicable to the wife, and that the court must consider the

wedding present discussed above only with respect to the Quebec Civil Code”

Mahr was viewed as a contractual donation.

Nathoo v.

Nathoo, [1996]

B.C.J. No.

2720, 1996

CarswellBC

2769

(B.C.S.C.).

$20,000 YES

Husband paid $37,747.17 to wife upon reapportionment of family assets (7% to

wife) and $20,000 mahr as additional and separate obligation, for a total of

$57,747.17, after less than 9 months of marriage.

Justice Dorgan stated, "our law continues to evolve in a manner which

acknowledges cultural diversity… Attempts are made to be respectful of

traditions which define various groups who live in a multicultural community.

Nothing in the evidence before me satisfies me that it would be unfair to uphold

provisions of an agreement entered into by these parties in contemplation of

their marriage, which agreement specifically provides that it does not oust the

provisions of the applicable law." (para. 25)

Kaddoura v.

Hammoud,

[1998] O.J. No.

5054, 44

R.F.L. (4th)

228, 168

D.L.R. 4th

503, (Ont. Gen.

Div.).

$30,000 NO

Court held that it should not determine the rights and obligations of the parties

under an agreement providing for mahr, as it would lead the court into the

“religious thicket” (paras. 25-26).

"The obligation of the mahr is a religious obligation and should not be viewed

as an obligation that is justiciable in the civil courts of Ontario."

The court expressed a clear desire to keep church and state separate under the

law (mentioning the United States Constitution, as there is no codified

separation of church and state in Canada).

The court (wrongfully in my opinion) equated mahr to an obligation in a

Christian marriage “such as to love, honour and cherish, or to remain faithful.”

(para. 25).

Amlani v.

Hirani, 2000

$51,000 YES

This was an unsuccessful application by the husband for a declaration that the

mahr agreement was not a “marriage agreement” for the purposes of s. 61 of the

BCSC 1653,

13 R.F.L. (5th)

1, [2000]

B.C.J. No.

2357.

Family Relations Act.

Agreement provided that mahr “ shall be in addition and without prejudice to

and not in substitution of all of my obligations provided for by the laws of the

land’.”

Wife initiated divorce and yet received mahr. Issue does not appear to have

been raised.

M. (N.M.) v.

M. (N.S.).,

2004 BCSC

346, 26

B.C.L.R. (4th)

80, [2004]

B.C.J. No. 642.

$51,250 YES

$51,250 mahr paid in addition to $101,911 division of family assets and an

additional $2,000 monthly in spousal support.

“Mahr has been found enforceable in cases where the Mahr agreements were

in writing and expressly indicated that the Mahr amount was in addition to the

obligations under the law…”

Khan v. Khan,

2005 ONCJ

155, 15 R. F.

L. (6

) 308,

O.J. No. 1923

UNKNOWN NO

Valid marriage contract in Pakistan was a valid domestic contract under the

Family Law Act but the waiver of spousal support was deemed unconscionable.

The court stated, “deference should be given to religious and cultural laws and

traditions of groups living in Canada… (but) if cultural groups are given

complete freedom to define family matters, they may tread on the rights of

individuals within the group and discriminate in ways unacceptable to

Canadian society.”

“The court is prepared to enter the ‘thicket’ and find that this document

represented more than mere religious significance to the parties and that it did

bind them civilly.” (para. 32).

“Nikah” bound the parties civilly but in these particular circumstances, did not

find it binding on the wife because she did not understand the nature and

consequences of the marriage agreement.

Nasin v. Nasin,

2008 ABQB

219, 53 R.F.L.

(6th) 446,

[2008] 291

D.L.R. (4th)

432, W.D.F.L.

2690.

$10,000 NO

Mahr was a pre-nuptial contract, but it was unenforceable in that case (para. 23

and 120).

“If parties enter into pre-nuptial agreements in a religious context, they will be

enforced if they meet the requirements under the Matrimonial Property Act and

the courts do not find the contracts invalid for other reasons.” (para. 24).

Formalities deficient – this pre-nuptial agreement met none of the requirements:

• no written contract

about the mahr between the parties although the ceremony was,

apparently, videotaped (but not introduced in evidence);

• no certificate of

acknowledgment that met the requirements of s. 38 of the Matrimonial

Property Act;

• parties did not receive

independent legal advice.

Khanis v.

Noormohamed

[2009] O.J. No.

2245, 2009

CarswellOnt

3164 (Ont.

$20,000 YES

Ontario Court of Appeal confirmed that mahr is indeed enforceable in Ontario.

Trial judge held that it was a valid marriage contract under Ontario law that the

parties had entered into at the time of marriage and was therefore enforceable.

Payment was in addition to property division pursuant to provincial laws.

On appeal, it was further held that the terms of the mahr were valid and binding

S.C.J.).

Appeal:

2011 ONCA

127, 91 R.F.L.

(6th) 1[2011]

O.J. No. 667

(Ont.C.A.).

under Ontario’s Family Law Act. Husband’s appeal was dismissed.

The Court of Appeal also found that the trial judge was correct in excluding the

$20,000 payment required under the mahr under s. 4(2)6 from the wife's net

family property, otherwise, treating it as an asset by the wife and a liability by

the husband would render the contract meaningless. (para. 74 of the trial

decision, and paras. 9 and 10 of the appeal.)

Droit de la

famille -

10717, (2010)

2010

CarswellQue

3072, EYB

2010-172092,

2010 QCCS

1342. (C.S.

Que).

1,000 gold

coins

YES

Married in Iran. 2½ year marriage. Mahr was one volume of Holy Koran,

1000 gold coins, one mirror and a pair of candlesticks.

Paid 100 gold coins, pursuant to Iranian court order. Owed one coin a month

for 400 months thereafter, failing which he would be convicted. (Court found

that 400 gold coins amounted to CDN $61,088.)

Court could not recognize the foreign judgment as materials did not specify

which judgment to recognize, and no evidence was heard regarding Iranian law

or procedure.

The court applied Quebec law as no evidence of Iranian law was introduced,

and reduced the gift to $5,000.

Ghaznavi v.

Kashif-Ul-

Haque [2011]

W.D.F.L.

4547,

W.D.F.L.

4545, 5 R.F.L.

(7th) 241 (Ont.

S.C.J.).

$25,000 YES Wedding and mahr agreement in Brampton, Ontario.

Justice Pazaratz found the parties entered into a valid Islamic marriage contract

and that the mahr contractual obligation was binding and enforceable as a civil

obligation in Ontario courts (para. 30.).

Aziz v. Al-

Masri, [2012]

B.C.W.L.D.

1838, [2012]

W.D.F.L. 1573

(B.C.S.C.).

500 grams of

21-carat

gold (worth

$21,000)

Iraqi-Canadian man now living in Ontario, and an Iraqi-American woman now

living in Vancouver, were married in Jordan before moving to Canada. The

mahr in dispute was 500 grams of 21-carat gold, worth about $21,000 at the

time (70 grams worth approximately $3,000 was paid as prompt mahr).

“It is clear that our courts have striven to be flexible in cases of this kind,

seeking to recognize and accommodate the traditions of other countries and

cultures where it is feasible and appropriate to do so. I start from the premise

that this is the correct approach, generally. (para. 3)”.

Mahr found unenforceable (whether Canadian or Jordanian law is the

applicable law by which the Contract should be interpreted) due to technicality

in wording of contract (as wife’s uncle named as contracting party, although

wife signed agreement, and it is not clear that she is the intended recipient of

the “dowry”).

Yar v. Yar,

2011 ONSC

301

(unreported at

this time) –

appeal

pending.

$741,643 NO Married in England. 13 year marriage. Both medical doctors.

Justice Festeryga accepted the opinion of one expert over another and found

that “the Islamic marriage between the parties is void as it was conducted

under circumstances that contravene Islamic law… (as they) were married

during this period of time without performing a marriage based on Islamic

law… and (the Respondent was) an atheist and had relinquished his Islamic

faith.” (paras. 14 and 15).

“According to Islamic law, Muslim woman can only marry a Muslim man. If a

woman marries a non-Muslim man, all conditions attached to the marriage

contract become null and void.” (para. 16).

He further found that the parties had no intention of performing an Islamic

marriage, and the purpose of the marriage was not to fulfill a religious

requirement but to satisfy the bride’s father. The Islamic marriage was “staged

for ostentatious reasons rather than for religious purposes” (para. 19) and the

amount claimed for Mahr of $741,643 (CDN) was “completely out of line and

unreasonable.”

“If I am in error with respect to the validity of the Islamic marriage, then the

amount that the husband paid for the wedding ceremony ($30,000 plus a mink

coat) at the time of the marriage is sufficient to satisfy his obligations under the

Maher. (para. 20).

Delvarani v.

Delvarani,

2012 BCSC

162, 2012

CarswellBC

298, 2012

BCSC 162,

211 A.C.W.S.

(3d) 381.

3,000 gold

coins

($750,000 or

$450,000)

NO Mahr Agreement appears to have been executed in Iran.

“In this case, I am not satisfied on the balance of probabilities that in fact the

parties had any agreement that Mr. Delvarani would pay these 3,000 gold coins

to Ms. Javadi. I am not satisfied that this part of the document was completed at

the time it was signed by Mr. Delvarani. Mr. Delvarani may have been

infatuated with Ms. Javadi at the time of the marriage, but it is difficult to

accept he would have committed himself to paying such a large amount of

money in addition to any other obligations he might have under the laws of

British Columbia.” (para. 209)

“Even if this were a valid marriage agreement under the FRA, it is clearly

unfair. Although there was no evidence to prove the value of these gold coins,

in her argument, Ms. Javadi asserted that they were worth $450.00 Canadian,

but that she would take $250.00 Canadian per coin as compensation. Even this

would be $450,000.00. At $450.00 per coin, this would be $750,000.00. Based

on the evidence before me, I am simply not prepared to accept that Mr.

Delvarani would have agreed to such an amount, nor would it have been a fair

agreement as contemplated by the FRA. This is so particularly in light of the

very short marriage and the fact that there is really no connection whatsoever

between the amount of money to be paid, the length of marriage, the need or

dependency of Ms. Javadi, or the ability of Mr. Delvarani to pay that amount.

Ms. Javadi’s claims, pursuant to this document, are dismissed.” (para. 210)

APPENDIX B – SAMPLE MAHR AGREEMENTS

A copy of the Marriage Contract attached to the Judgment in Amlani v. Hirani, [2000] B.C.J. No. 2357, 13 R.F.L.

(5th) 1 (B.C.S.C.)