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FAQ: Marriage Contracts
Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.
Is my dower from Iran enforceable in Ontario?
In my marriage certificate (dower) from Iran, it states that my husband must pay me a sum of money on demand. We now live in Ontario. Is this contract enforceable in Ontario?
According to section 58(a) 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 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.”
Furthermore, according to section 52(1)(d) of the Family Law Act: “Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including, any other matter in the settlement of their affairs.”
In addition, pursuant to section 55(1) of the Family Law Act: “A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.”
In Ghavamshirazi v. Amirsadeghi, the parties entered into an marriage bill in Iran on April 17, 1991. Under the bill, the husband was obligated to pay the wife, on demand, 500 gold coins (Cdn. $102,371.35) as dower or in respect of that obligation. The trial judge found that the Iranian marriage contract between parties, including provisions relating to the dower, was valid and enforceable. The Respondent then brought a motion to set aside the Order. His Motion was dismissed. Ultimately, G.A. Campbell J. held that the marriage bill entered into in Iran was a valid marriage contract capable of being enforced in Ontario. He reasoned that section 58(a) of the Family Law Act provides that a marriage contract made outside of Ontario is valid if entered into in accordance with Ontario law. Furthermore, he noted that section 52(d) of the Act provides that a marriage contract may deal with any matter in the settlement of the parties’ affairs and that the dower obligation could fall into that category.
However, it is equally important to note that there have been decisions which have determined that such contracts are not enforceable.
To learn more about the services provided by Krol & Krol in the area of family law, contact 905.707.3370 today.
Will Ontario courts enforce a mahr?
A mahr is a type of marriage agreement that contains particular conditions regarding payments, in the form of cash or in the form of property, that the husband would be required to give his wife in the event of divorce, or if he dies.
In the Muslim tradition, Muslim marriage contracts must include a mahr, even if the marriage takes place in Canada, the United States, or elsewhere. A concept upon which a mahr is drafted is as a gift that a husband agrees to give his wife at the time of marriage; however, usually this payment is only given and enforced if the marriage ends, or if the husband dies.
The value outlined within this form of marriage agreement varies, depending on the financial situation of the husband at the time of the marriage. Though usually the parameters refer to money, the agreement may outline jewelry, gold or any other valuables or property that the husband owns.
The purpose underlying the drafting and signing of a mahr is that wives, in the Muslim tradition, obtain some form of financial security in the event that she can no longer rely on her husband to support her financially.
In Canada, there have been different responses by courts with regard to whether or not they move to legally enforce the mahr. Some Canadian courts recognize the mahr as a type of domestic contract, and as such, enforce it as a domestic contract in the context of Toronto divorce law. There is a body of case law that identifies the standards of a mahr as similar to a pre-nuptial agreement, and thereby enforceable. In contrast, some Canadian courts have ruled that the agreement is a religious document and as such, claim it is outside their legal abilities to enforce the terms outlined in the documentation.
Due to the fact that the standards surrounding a mahr closely resemble the standards of any other domestic contract, the court will usually consider the specific facts of each, individual, unique case while determining whether or not they are in a position to legally enforce this documentation.
At the outset, a mahr must fit certain criteria in order to potentially be enforceable. As such, it must be in writing, signed by both parties, and witnessed. In the event that the contract fails to meet these criteria, the court will not enforce it. The mahr needs to be specific and detailed when referring to the amount that will be granted to the wife, as well as the timing and circumstances upon which the amount will be given.
It is important to note that a mahr does not replace a woman’s claim to spousal or child support, or the equalization of net family property at the time of a marriage breakdown. The wife is granted the amount outlined in the mahr in addition to whatever she is entitled to legally in Ontario as outlined by the support guidelines and equalization of property.
For more information on legally enforceable marriage agreements in Ontario and divorce law, contact Krol & Krol at 905.707.3370.
What is a pre-nuptial agreement or a ‘pre-nup’? What is a post-nuptual agreement?
A pre-nuptial agreement is also known as a marriage contract or a ‘pre-nup’.
A pre-nuptual agrement is a type of domestic contract that can be made in the province of Ontario between two individuals who intend to get married. The pre-nuptual agreement itself lays out what will happen if the parties divorce in the future (i.e. the terms of any divorce). Provisions in these types of agreements may include, but are not limited to, division of property and spousal support in the event that the couple gets a divorce in the future.
In order to make the agreement more resistant to attack in the future, parties ought to:
1. Exchange financial disclosure;
2. Each party must have independant legal advice.
In order for a pre-nuptial agreement to be legally binding, the agreement must be in writing, signed and witnessed.
A post-nuptial agreement is similar to a prenuptial agreement. The only major difference between the two is that a post-nuptial agreement is executed after the couple is legally married.
For more information on both pre-nuptial agreements and post-nuptial agreements and to learn about the services provided by Krol & Krol in the area of family law, call 905.707.3370.
I am married. Is it too late to sign a marriage contract?
A marriage contract (also referred to as a prenuptual agreement) determines specified issues between a married couple if the marriage comes to an end. These contracts may deal with issues such as spousal support and property.
Once you are married, you and your spouse may still sign a marriage contract.
If you are the party who would like a marriage contract in place and you get married without a marriage contract, your spouse may thereafter decline to sign the contract. Therefore, it may be preferable for these issues to be determined before the marriage takes place.