Speaker's Corner: Husband’s atheism leads court to nix Muslim marriage contract

Different cultures and religions produce their own domestic contracts. Occasionally, the courts have to measure them against Ontario law, as in the recent case of Yar v. Yar.

In 1993, as part of a Muslim marriage ceremony held in Germany, a couple signed a document called a maher or mahr. They had previously had a civil marriage in 1991. The mahr document said the husband was to pay the following: 100 German marks and 500 grams of gold and 1 million German marks ($741,643), deferred.

By 2010, the couple was living in Ontario, separated, and in a matrimonial dispute. At trial in the  Superior Court in Hamilton, Ont., the wife, relying upon the mahr, tried to collect the $741,643. As a result, Justice W.J. Festeryga had to decide whether the mahr was an enforceable marriage contract and whether the amount to be paid was the one stipulated in the agreement or something else.

Ultimately the claim was denied for reasons of religion rather than strict contract principles.

It was clear by 2010 that if a dispute has a religious aspect, that fact alone doesn’t make it non-justiciable. Further, there was no public policy reason not to honour a mahr agreement. One court in Ontario, however, declined to enforce the terms of a mahr as it would lead the court into a religious thicket. Nonetheless, the Supreme Court of Canada, in Bruker v. Marcovitz, said that “if a spouse can show that the religious marriage contract meets all the requirements for a civil contract under provincial legislation, then the courts may order the fulfilment of undertakings to pay the amounts provided for in the contract.” During the Yar case, two experts on Muslim law testified on the cultural and historic role of the mahr in order to assist the trial judge in deciding if this was an enforceable agreement. The wife’s expert, professor Anver Emon, posited that the mahr was simply a contract rather than a religious document and should be treated as such. Amongst other principles, he explained that in the Islamic legal doctrine, the husband pledges to pay the wife a mahr, a term which invokes a  series of legal rules:

— The amount of the mahr is negotiated at the time of marriage. The ultimate figure is often a reflection of the parties’ class, social status, cultural attitudes, and other considerations. The mahr is considered the wife’s separate property.

— Payment of the mahr to the wife is legally due upon finalizing the contract. Islamic jurists, however, have historically understood that the larger the mahr amount, the less capacity the husband may have to pay it at the time of marriage. As a result, they held that the parties can elect to have only a portion of the stipulated mahr paid upon finalizing the contract. The remainder can be deferred. In this case, the deferred amount was the 1 million German marks.

— Although deferred, the entitlement to the later payment retains its quality as the wife’s exclusive property throughout the marriage.

— The deferred amount becomes payable upon the husband’s death or the dissolution of marriage. Mere separation isn’t sufficient to trigger the husband’s liability to pay the deferred amount. That occurs only on divorce.

— In its historical context, the mahr was designed to give the wife some financial stability without subjecting her to financial responsibilities for the household.

By contrast, the husband’s expert, professor Liyakat Takim, noted that in many Muslim societies, the mahr is often fixed at an exorbitant amount as a status symbol to elevate the social standing of the families concerned. As a result, it wasn’t actually intended to be paid. This, he argued, was the case with the 1 million German marks.

In turn, if the mahr is fixed at such an exorbitant rate that the groom can’t afford to pay it at the time of the marriage, he’s only required to pay what is called al-mahr al-mithl, an amount considered normal by local custom. The al-mahr al-mithl is calculated based on the bride’s social standing at the time of marriage.

In cases where the wife demands a divorce, Islamic law states that the husband has the option to state conditions for agreeing to it. This may include the clause that the wife foregoes any mahr that’s outstanding.

To this latter point, Emon added the following distinctions:

— If the wife petitions for divorce, she can seek a for-cause divorce or a no-cause divorce. If she seeks a divorce for cause, such as physical abuse, she’d preserve her financial claims against her husband, including her deferred mahr. If the woman sought a no-cause divorce, she’d have to forego her financial claims upon her husband and would lose her right to the mahr.

— Although the husband has a right to unilaterally pronounce a divorce, most Muslim states have said that no such declarations are legally effective. Instead, the parties must come to court to petition for a divorce.
— In the event the husband invokes his right of divorce before a court, he’s liable for any and all financial obligations to his wife, including any deferred mahr payment. Therefore, the husband could and often would refrain from filing for divorce and wait for the wife to seek a no-cause proceeding.

A serious factual dispute at trial in Yar was whether the parties had cohabited between the date of their civil marriage and their Islamic marriage ceremony. Equally disputed was the question of whether the husband was an atheist or a Muslim when he got married. Takim said that if they cohabited after the civil proceedings but before the Islamic ceremony, the Islamic marriage was void. If the husband was an atheist, he said, the contract was void because an Islamic woman isn’t permitted to marry a non-Muslim.

The latter position, Emon argued, worked to the detriment of Muslim women. But the judge accepted the husband’s evidence and held that the Islamic marriage was void due to cohabitation and the contract was void because the woman had married a non-Muslim. In other words, the court treated the agreement as one that failed to meet the requirements of a religious marriage contract rather than a civil one and thereby reversed the prescription of the Supreme Court of Canada. For good measure, Festeryga held that the mahr amount was exorbitant and unreasonable. If the husband was required to pay any sum, he had met that obligation by paying for the wedding expenses and gifting the bride a $30,000 mink coat. The judgment was appealed but not the portion dealing with the mahr.

A case like this is a striking illustration of how lawyers have to be alert to multiple layers of cultural nuance and the need for experts who will guide them through it. It involves the types of questions they’ll increasingly face in matters that include such religious elements.

Simon Schneiderman is a lawyer with Simon Schneiderman Professional Corp. His practice is focused on family and commercial litigation. He can be reached at 416-361-0680 or [email protected]. He acted for the wife in Yar.

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