UPDATED Answer: Mahr (also spelled maher, mohr and mehr) is a form of marriage agreement in which the husband promises to pay his wife (in cash or other forms of property) if the marriage ends or if he dies. Muslim marriage contracts always include a mahr, whether the marriage takes place in Canada or elsewhere. The mahr may be a prompt mahr (muajjal), which means it is paid at the time of marriage, or a deferred mahr (muwajjal), meaning it is paid at the time of divorce or upon the death of the husband.
According to the Encyclopedia of Islam, it is “the gift which the bridegroom has to give to the bride when the contract of marriage is made and which becomes the property of the wife” although most of the gift is not actually given unless the marriage ends or the husband dies.
It might more easily be understood as a promise made at the time of the marriage, in writing, that comes into effect later if the necessary circumstances arise.
The value can be small or large, depending on the financial situation of the husband. While it is often money, it may be jewellery, gold or other valuables or property.
The intent of the mahr is to provide some financial security for the wife in the event she no longer can rely on her husband to support her. Because of this, only a small portion of the mahr is paid at the time of the marriage, with payment of most of it deferred until later.
The concept of mahr is more easily understood within the context of Islamic marriage, which is a civil contract. It is not intrinsically a religious institution – while Muslim wedding ceremonies may contain a religious component, it is not required. It is the contract, which includes the mahr, that forms of the basis of the marriage relationship.
If the husband dies before the wife, the mahr becomes payable, and is to be paid from the husband’s estate before any other debts.
Over the past three decades, there has been a very uneven response by Canadian courts to the enforcement of mahr in situations of marriage breakdown/divorce. It is important to note that the enforceability of a mahr is not related to which spouse initiates the end of the marriage. In other words, if the other necessary conditions are met, the mahr will be enforceable even if it is the woman who has applied for the divorce.
Some courts have seen the mahr as a form of domestic contract and enforced it under those provisions of family law. Others have ruled that it is a religious document and so unenforceable by the court.
There is, now, a body of case law that has found that, when properly prepared, mahr is a form of pre-nuptial agreement and, so, enforceable.
The standards for mahr are like those for any domestic contract and, further, the court will consider the specific facts of each case in determining whether or not the mahr will be enforced.
In other words, the mahr must be in writing, signed by the parties and witnessed. Proper financial disclosure must be provided by the parties to one another, and there must be no duress. Here, a court would consider the same kinds of evidence it would when determining the enforceability of any domestic contract. (See our FAQ about domestic contracts for more detailed information about this.)
The wording of the mahr should be specific and detailed about both the amount and the timing and circumstances under which it is to be provided to the wife.
Mahr does not replace a woman’s claim for spousal or child support or for an equalization of net family property as set out in provincial family law statutes. She is entitled to these in addition to whatever her mahr provides for her. Further, the mahr does not form part of her family property for the purposes of the equalization of net family property. It may, however, have an indirect impact on the amount of spousal support. For instance, if the value of the mahr is substantial or affects the wife’s income earning potential, this could be a factor when deciding on the range of spousal support to be paid.
The more clearly written the marriage contract that contains the mahr, the easier it will be to enforce. It is a good idea if it contains a phrase that makes this clear; for example:
“in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the land.”
For a sample of a Muslim marriage contract that meets the standards of Canadian family law for the purposes of enforcement, please see the Muslim marriage contract toolkit developed by the Canadian Council of Muslim Women at: http://ccmw.com/marriage-contract-english-french/
As with so much of Canadian family law, the enforceability of the mahr will depend on the specific facts in each case. Courts will consider such factors as:
- The precise wording of the mahr
- The circumstances of its execution (was there duress, was it signed just before the marriage ceremony, was there adequate financial disclosure)
- The presence of factors that would make enforcement unconscionable
Canadian courts seem to draw a clear distinction between marriage contracts entered into in other jurisdictions (in which cases, the courts here are less likely to enforce the mahr) and marriage contracts entered into in Canada by Canadian residents (in which cases, the courts are more likely to enforce the mahr, if it meets the standards set out above).
Recent Ontario cases that address the enforceability of mahr include:
- Khanis v Noormohamed , a 2009 case in which the court found the mahr to be a valid marriage contract. This decision was upheld by the Ontario Court of Appeal, which found that the terms of the mahr were valid and binding under the Family Law Act and that payment of the mahr was in addition to the wife’s right to an equalization payment.
- Rashid v Shaher, a 2010 case. The couple had a religious ceremony and not a civil marriage, so they could not turn to the Divorce Act to address family law issues. They had not lived together long enough to meet the criteria for a common-law couple under the Family Law Act. They had entered into a marriage contract that included a mahr, and the court found that there was no public policy reason not to honour (ie enforce) the terms of this contract.
- Ghaznavi v Kashif-Ul-Haque, 2011, in which the terms of the mahr were upheld by the court, which found that the Islamic marriage contract was a valid domestic contract and so was binding and enforceable.
- Yar v Yar, 2011, in which the court found the Islamic marriage to be invalid because the husband was an atheist, and therefore did not enforce the mahr.
- Etemad v Hasanzadeh, 2014, was a case in which the wife brought an action in Iran for enforcement of her mahr. The Iranian court ordered the husband to pay the wife, and then the wife pursued spousal support and an equalization of family property in Ontario. The court found that the mahr was a debt owed by the husband to the wife both at the date of marriage and the date of separation, so did not affect the calculation of net family property. With respect to spousal support, the court found that the wife was not entitled to retroactive support because of the mahr, but she was entitled to prospective support.
- Bari v Nassr, 2015. The husband argued that the wife could not claim both the mahr and spousal support. The court looked for “an approach that reaches an appropriate balance,” and took the mahr into account in awarding mid-range spousal support.
If you are working with a Muslim woman who has questions about her mahr, you can refer her to the Canadian Council of Muslim Women (www.ccmw.com), which may have a chapter in your community.
CCMW has also developed considerable resources related to marriage and divorce for use by Muslim women in Canada, all of which are available on the organization’s website. Of particular relevance to this topic, I highly recommend the Marriage Contract Toolkit developed by the Canadian Council of Muslim Women.
This kit provides information for women who are interested in developing a marriage contract that is in keeping with both Muslim and Canadian family laws. It includes a sample contract as well as interesting and useful background information on a variety of topics related to civil and religious marriage and divorce as well as women’s equality.