Will the family court enforce a mahr that a Muslim woman has signed with her husband?

Answer: Mahr 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.

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.

Over the last three decades, there has been a very uneven response by Canadian courts to the enforcement of mahr. 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.

Recent Ontario cases that address the enforceability of mahr include:

  1. 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
  2. Ghaznavi v Kashif-Ul-Haque, 2011, in which the terms of the mahr were upheld by the court
  3. 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

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, 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.

For a more detailed discussion about the enforceability of mahr in Canadian Courts, please see: “Enforcing Mahr in Canadian Courts” by Fareen L. Jamal in the March 2013 issue of the Canadian Family Law Quarterly, from which I drew the three cases listed above.

January 2014