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.
