Mom with baby

This two-part series summarizes the paper, “Cultural Considerations in Dividing Family Property”, which was written by Susan Berry of Berry Gage LLP for the Law Society of Ontario’s 2018 Six-Minute Family Law Lawyer. The summary was prepared by Amanda Smith for Luke’s Place. The paper explores some of the ways in which cultural traditions and norms interact with Canadian law and jurisprudence at the time of property division and economic redistribution upon divorce.

Topics covered in this first post include the Old English concept of dowry and dower and Mahr, the Islamic marriage contract. The second post will cover the Jewish Ketebuah and gifts of money and gold made in contemplation of and at the time of marriage in the Hindi and Muslim traditions and the tradition of engagement rings.

Old English Traditions of Dower and Dowry

Dowry is the Old English tradition of the father of the bride giving the husband a financial contribution to give his daughter some financial security during and in the event of the end of marriage.

Many cultures have similar traditions. For example, during medieval times in India, a gift of cash or kind was given to a bride by her family at marriage to give her some financial independence. The practice was made mandatory by the British during colonial times but was officially outlawed in 1961, with the passing of the Dowry Prohibition Act. Nevertheless, this is still a prevalent practice in some regions that can lead to violence against women.[1]

Dower, a Saxon institution, refers to property rights ensuring to the wife, which originated from the period of time when women had no right to hold property in their own names.

In Canada, dower at common law existed in all provinces and territories until 1978 when the new matrimonial property regime came in. At common law, dower referred to a matrimonial property right over which, by the 1880s, the husband could exercise no control, even during his lifetime.

Dower is not entirely extinguished in Canada. Alberta still has the Dower Act which protects a spouse who is not on title from having land disposed of or encumbered without consent.[2] This right to dower can block a sale or other encumbrance, even if the transaction was made in good faith by the husband.

These terms, dowry and dower, are often used as an analogous to certain cultural traditions from Muslim, Jewish and Hindi marriages, yet none of these tradition precisely replicates the historical English form.

Mahr: Islamic marriage contract

Mahr is an Islamic marriage contract, negotiated between the parties or between the families with the assistance of Islamic clerics.

Mahr is a gift the husband is contractually bound to give to the wife and often consists of a number of sundry and symbolic items.

There are two types of Mahr, prompt or instant Mahr paid at the time of marriage and deferred Mahr to be paid upon the wife’s demand or in the event of death or divorce, with the latter being more common.

Dowry seems to be the closest approximation to Mahr and is often called a dowry in translation and Canadian case law.

Mahr is not necessarily the full and final financial settlement between the parties on divorce. The Qu’ran states the wife is entitled to maintenance and any of her own property in addition to the Mahr upon divorce.

There are different cultural expectations. Some Muslim schools of thought hold the father of the husband accountable for payment of the Mahr if the husband cannot. Others hold that the wife, if she initiates or is at fault for divorce, forfeits her right to payment of deferred Mahr. Others hold prompt Mahr should be returned to the husband or family. These tensions play out in cases involving Mahr in Canadian family courts.

Jurisprudence on Mahr

The first case involving Mahr is Kaddoura v. Hammoud (Kaddoura) in 1988. The Court declined to enforce or deal with the Mahr in that it was beyond the scope of the court’s jurisdiction.[3]

After the Supreme Court of Canada’s decision in Bruker v. Marcovitz, (Bruker)[4] where the court upheld an order requiring consent to the granting of a Jewish Get, courts accepted that they could engage with issues of a religious nature.

In 2009 the issue of Mahr was addressed in Ontario family court in Khanis v. Noormohamed.[5] The wife sought enforcement of a $20,000 payment “as provided for in the parties’ traditional marriage contract under Muslim law” (para 2). The court applied s. 55(1) of the Family Law Act which permits parties to enter into a domestic contract, provided that such contract is in writing, signed by the parties and witnessed. The court found the contract met the requirements of s. 55(1) and that it clearly provided the Mahr to be “in addition and without prejudice to and not in substitution” to any other property or support entitlements arising to the benefit of the wife in accordance with the “laws of the land”. The husband then claimed the $20,000 should be added to the wife’s NFP as her asset and his debt on the date of separation. The court rejected this as it would be contrary to the “in addition to” portion of the Mahr contract.

In the 2015 Ontario case Baknshi v. Hosseinzadeh, (Bakkishi)[6] the court found the Mahr was a legal obligation owed to the wife by the husband pursuant to the written Islamic contract, in addition to the normal equalization of property. The court found the contract was valid and the equalization payment was determined excluding the Mahr and the Mahr was added to the payment owing as an adjustment to the NFP statement. The court relied on Khanis in making this finding. On appeal, the ruling was varied and the court distinguished the contract in Bakhsi from the contract in Khanis where in the latter the contract contained express language excluding the Mahr from NFP but no equivalent language was found in the former. The wife argued any transactions between parties, regardless of Maher contract language, ought to be excluded from equalization of NFP. The court rejected this argument since the Family Law Act did not contain any supporting provisions. The court recalculated the NFP with the Mahr a debt for the husband, resulting in the wife receiving the Mahr with the equalization payment reduced accordingly.

Prompt Maher and Allegations of Fraud

In the 2015 Court of Appeal case, Abdollahpour v. Banifatemi[7] the husband and family alleged the wife was disentitled to her prompt Mahr on the basis of fraud. The Mahr was given to the wife in the form of a 50% interest in a home owned by the husband’s parents. The Mahr was outlined in a contract and a Deed of Gift provided for the transfer of the property at marriage. Fraud was alleged on grounds that the wife’s objective of the marriage was to gain interest in the property and sponsorship to become a permanent resident. It was argued the Mahr contract contained unwritten conditions that should be used to interpret the contract including a provision that should the wife leave the marriage, the conditional gift was to be returned to the husband. The court refused and held such provisions should be incorporated into the Deed of Gift. The Deed of Gift was upheld and the wife retained her interest.

Void for Uncertainty

In Mohammadi v. Safari[8] a portion of the Mahr was voided for uncertainty. There was no prompt Mahr payable and the deferred portion consisted of 14 gold coins, travel to Hajj and 150 meters of square land in Canada. The husband alleged the marriage was for a fraudulent purpose of immigration and that the wife altered the contract after marriage. The court disagreed. The 150 metres of land in Canada did not refer to a specific land and the wife sought an equivalent value of a condo in downtown Toronto. The court declined to make the award, given the unspecificity of the geographic location as written in the Mahr contract. The court ascertained the value of the gold coins and travel to Hajj and awarded the value to the wife.

Take-Aways

a)     Mahr is an enforceable contract

b)    Mahr is subject to all of the tests of any other marriage contract and/or gift and transaction between spouses:

  1. It must meet the test of any other marriage contract (in writing, signed and witnessed, understood and not made under duress)
  2. Any normative terms the parties understand culturally to be relevant to the payment of Mahr need to be included in the written contract, such that if the Mahr is intended to be a conditional gift this must be explicitly stated
  3. The wording of the Mahr with respect to its relation to other legal remedies or laws open to the parties to pursue is important and the Mahr may be either included or excluded from the normative division of property accordingly.

Endnotes

[1] Ramakrishnan, Varsha. The Dwory System in Indica: Is the Trend Changing? Pulitzer Centre on Crisis Reporting, https://pulitzercenter.org/

[2] Whatever Happened to the Law of Dower? It’s Alive and Unwell and Living on the Prairies A Case Comment on Schwomstede v. Green Drop Ltd. (40 R.P.R. (2d) 1) and Bank of Montreal v. Pawluk (40 R.P.R. (2d) 18) 20 R.P.R. (2d) 44

[3] [1988] O.J. No. 5054, Rutherford J. (at paras. 25-26)

[4] [2007] S.C.J. No. 54

[5] [2009] CarswellOnt 3164 (Ont. S.C.J.)], 2009 CanLii 27829

[6] 2015 ONSC 7407, 2015 CarswellOnt 18684

[7] 2015 ONCA 834, 2015 CarswellOnt 18333

[8] 2017 ONSC 4696, 2017 CarswellOnt 12389