What is a Mahr?
There are three essential elements for the solemnization of an Islamic marriage. They are that any Muslim couple be competent to marry, that they express their willingness and consent to marry before witnesses, and that the “Mahr” (also referred to as “Meher”, “Mehr” or less commonly, “Moakhr”) be agreed upon and paid.
Mahr is an obligatory gift or contribution with monetary value provided by the husband-to-be to his wife-to-be, to use at her discretion. The Mahr amount is decided prior to marriage and stipulated in the Islamic Marriage Contract. The concept of Mahr has its roots in the Quran, which provides that the Mahr is the wife’s exclusive property, and she receives it as of right. In the event of a divorce or if the husband predeceases the wife, the Mahr offers some financial security for the wife.
Mahr is a contract recognized by Canadian courts
In Marcovitz v Bruker, 2007 SCC 54, the Supreme Court of Canada concluded that the mere fact that a contract has a religious aspect or basis does not preclude its judicial consideration and enforceability.
Bakhshi v Hosseinzadeh, 2017 ONCA 838
In the leading case of Bakhshi v Hosseinzadeh, the Ontario Court of Appeal addressed the legal question of whether, a property transferred as the Mahr ought to be excluded property pursuant to section 4(2) of the Family Law Act (FLA) or whether it should be included in the Net Family Property (NFP) for purposes of the equalization calculation.
In this specific case, the parties were married in Iran in 1995. Their marriage contract provided that the wife would receive a Mahr amount of 230 gold coins upon her request (valued at $79,580.00 CAD). The spouses later emigrated to Canada and separated in Ontario in 2013. The wife subsequently brought an Application for divorce, parenting time, equalization, and other relief.
The Court of Appeal explained that the trial judge’s conclusion regarding the effects of the Mahr was two-fold:
- The trial judge found that the Mahr was enforceable; and
- The trial judge found that the Mahr was to be excluded from the wife’s NFP for equalization purposes.
The Court of Appeal took no issue with the trial judge’s first finding. More specifically, the Court of Appeal affirmed prior rulings that the Mahr is to be treated as any other contractual obligation, despite its religious implications. The court further explained that in its analysis to enforce the Mahr, the objective intentions of the parties as ascertained by the wording of the Islamic Marriage Contract when read as a whole and in light of its context, must be examined.
The Court went on to say that the religious and/or cultural significance of the Mahr could be a relevant contextual element when determining the parties’ contractual obligations. The Court concluded that it would only enforce Mahr payment if the marriage contract was aligned with the statutory requirements of a civil domestic contract under the provisions of the Family Law Act.
Regarding the second issue, the Court of Appeal observed that NFP, as defined in the FLA, includes all property owned by a spouse at separation. The Court also considered the fact that the marriage contract contained no express provision that the Mahr payment of 230 gold coins was to be excluded from the wife’s NFP. For these reasons, the Court of Appeal concluded that the payment agreement between spouses was to be treated under the FLA like any other payment obligation.
The impact of Mahr on spousal support
It is important to note that the money owed as Mahr is not considered by Canadian courts as a replacement for spousal support. Mahr payments may have an impact on spousal support claims if the amount is of significant value.
Talk to an Ottawa Family Lawyer
If you have questions about how a court may deal with an Islamic Marriage Contract, the enforcement of Mahr payments, or any other issues related to separation or divorce, Samah Rahman, one of our experienced family lawyers would be happy to set up a consultation. Samah Rahman is a trusted Muslim divorce and family law lawyer. Contact RPB Family Law today to learn about our services.