Q: I intend to have an Islamic marriage. Will my Mahr be enforceable in Ontario?
A: “Mahr” (also spelt as “Maher” or “Mehr”) is a gift paid from the groom to the bride as part of a Muslim marriage contract. The gift, which is often times a sum of money, becomes the sole property of the bride and is considered hers to do with as she pleases. It can either be paid up front to the bride, deferred to a later date or both if split into separate payments. It can be paid upon divorce or upon the death of the groom. The majority of Muslims consider Mahr as an integral and obligatory part of a Muslim marriage contract.
Courts across Canada have differed on whether traditional marriage contracts under Muslim law are enforceable. However, as society has evolved in Canada to become more multicultural, there is a greater acceptance of the transfer of moral obligations into legally binding ones.
During the chaos of planning a wedding it is not unusual for young couples to simply leave the details of the Mahr to their parents to figure out. Unfortunately, a lack of preparation before the wedding in this regard can lead to issues with: (1) enforcing the payment of a deferred Mahr at the time of divorce or; (2) obtaining the return of the Mahr pursuant to the principals of “Shariah” or Islamic law upon which the Mahr was based.
The issue of whether Mahr is enforceable in Ontario boils down to whether the actual contract entered into by the parties is valid and binding under the Family Law Act.
Firstly, before contacting a lawyer, the bride and groom should confirm that the Mahr fulfils any and all religious requirements by checking with their religious advisor beforehand.
Once the Mahr has been set, there is no reason for why it cannot be written up as a formal domestic contract provided that it abides by the conditions set out in the Family Law Act for enforceability. These include: (1) being made in writing; (2) being signed by both parties and; (3) witnessed. Additionally, Mahr contracts, like any contract, can be set aside if: (1) a party fails to disclose significant assets, debts or liabilities existing when the contract was made; (2) a party did not understand the nature or consequences of the contract or; (3) otherwise in accordance with the law of contract.
If the parties follow a Muslim school of thought which allows the Mahr to be returned or rendered void upon particular conditions being met, then those conditions should be set out in writing. It is unwise to assume that the Mahr will be automatically returned or voided if one spouse initiates the divorce unilaterally with or without a reason.
Contracts entered into prior to marriage can have a huge impact on the property division between parties upon divorce. If a Mahr contract follows the principals set out above, there is no reason to think that it will be ignored by an Ontario Court simply because it is a religious practice. Additionally, because Mahr contracts do not displace existing legal obligations under Canadian law, such as the obligation to pay spousal and child support, obtaining independent legal advice before signing any contract is absolutely crucial in order to avoid a costly legal battle in the future.