Enforceability of Islamic marriage contracts

By Jenny Bogod

Canadian courts have been divided on the enforceability of Islamic marriage contracts, also known as a “maher” or “mahr.”

The Ontario Superior Court’s decision in Yar v. Yar, 2015 ONSC 151 (CanLII) encourages courts to avoid undergoing an analysis as to whether the marriage contract is valid pursuant to Islamic law.

The court held that “to be enforceable in Ontario, the contract must meet the legal requirements set out in the Family Law Act.” Other than being in writing, signed by both parties and witnessed, the mahr should be voluntarily entered into and understood by the parties in order to be enforced in Ontario.

In Yar, the spouses were initially married in a civil ceremony in England in 1991 and went on to participate in an Islamic marriage ceremony two years later. The mahr agreement provided for an advanced payment of 100 German Marks, and a deferred payment of 1,000,000 German Marks from the husband to the wife in the event of a marriage breakdown or death.

When the parties separated 13 years later, the wife’s position was that the court should enforce the mahr, obliging the husband to pay her $741,643 (CDN) in addition to what is owed to her by way of an equalization payment.

This matter was first heard in 2011 before Justice William Festeryga of the Ontario Superior Court of Justice. In order to interpret the agreement, the court required the opinion of experts in Islamic law.

Festeryga accepted the expert evidence of Professor Liyakat Takim that the parties’ Islamic marriage would likely be void under Islamic law as it was conducted under contravening circumstances. According to the expert, marriage between a Muslim and a non-Muslim would be contravention of Islamic law.

The husband was an atheist at the time of the Islamic marriage and the court accepted that the parties lacked the intention to perform the Islamic marriage to begin with. In addition to taking the expert’s evidence into consideration, Festeryga commented on the amount claimed for the mahr which he found to be “completely out of line and unreasonable.” The court went on to set aside the mahr as a result of its failure to meet the standards of Islamic law.

The wife appealed to the Ontario Court of Appeal, which directed that the matter be returned for a new trial. The Court of Appeal held that Festeryga provided inadequate reasons for the orders he made in this matter.

The matter was retried before Justice L.M. Walters of the Ontario Superior Court in Hamilton. Her decision is insightful as to the analysis that courts should make when determining the enforceability of a mahr.

A mahr is subject to the same scrutiny as a domestic contract under the Family Law Act (FLA) in accordance with ss. 52, 55, 56 and 58 of the legislation. This decision further suggests that the admissibility of expert evidence should be limited when the court finds that contractual requirements under contract law as well as the FLA have not been satisfied.

Walters considered the experts’ opinions to be more “interesting” than actually relevant to the issue of validity and enforcement of mahrs under Ontario law. She held that “whether or not this marriage contract is valid under Islamic law is not determinative of the issue in Ontario.”

Like all domestic contracts, the enforceability of the mahr required that the contract meet the legal requirements set out in the FLA.

As evident from Yar, the courts should stay away from the “religious thicket” in trying to determine whether or not a contract goes against Islamic law. Instead, the courts should look to the form as well as the substance of the contract before them, specifically through the lens of the legislation.

In this case the agreement was in writing, signed by both parties and witnessed. However, this was not sufficient to enforce this contract. Rather, the court went on to examine the precise wording of the mahr in addition to the circumstances of its execution to ascertain whether or not the parties knew the deal they were entering into.

The document was written in Arabic although neither party was able to speak, write or read Arabic. Walters made a finding of fact that the husband did not have the ability to partake in the negotiation of its terms, did not have independent legal advice, and was confused as to the amount and currency he was agreeing to pay in advance.

The court was overall concerned about the husband’s ability to understand the nature of what he was signing. Walters stated that in order for a mahr to be enforced, the court “must be satisfied that the parties to the agreement were of a like mind, knew what they were agreeing to, and were agreeing to be bound by the terms of the contract.”

Given that the circumstances of the mahr’s formation were of concern to the court, Walters set aside the parties’ agreement pursuant to s.56(4) of the FLA.

Following Yar, the courts should look to sections of the FLA to ascertain not only whether the formal validity requirements have been met, but also that the parties knew the deal that they were making at the time that the mahr was signed.

Jenny Bogod is an articling student at Basman Smith LLP.

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