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 the first post include the Old English concept of dowry and dower and Mahr, the Islamic marriage contract. This second post will look at 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.
Ketubah: The Jewish marriage certificate or contract
Ketubah is the Jewish marriage certificate/contract. In Israel, the rabbinical courts have exclusive jurisdiction over marriage and divorce of Jewish citizens. A Jewish person can apply to such courts for the Ghet/Get, Jewish divorce, and part of the process of obtaining the divorce is enforcing the terms set out in the Ketubah.
Ketubah often provides for a sum of money to be paid to the wife upon divorce. The amount may be set out in the written document but is ultimately determined by the judges of the rabbinical courts.
Canadian courts have had limited opportunities to determine the enforceability of the payment of a settlement pursuant to the Ketubah. In 2012, in the case of Stav v. Stav, the wife was granted a divorce by the rabbinical courts in Israel and was awarded a payment of $96,000. In 2013, she sought to have the award from the rabbinical court enforced in the B.C. court, which determined it should recognize the Ketubah claim by applying the real and substantial connection test for foreign order. The court relied upon Bruker to confirm the authority to enforce the award of the rabbinical courts exists, despite the religious nature of the court and the award. However, because there had already been a previous trial where the financial issues of the parties had been dealt with and the Ketubah had not been raised at the time of trial, the court held the rabbinical court order was not recoverable through a BC court order.
The extremely limited jurisprudence suggests that the Ketubah is a claim that can be enforced by the courts, provided that the claim is raised as part of the overall action.
Gold is a common gift, particularly to the wife, in many Hindi and Muslim marriages. The gold is financial security for her and can be sold for her benefit during the marriage. There are many cases where the husband or wife accuse the other of taking family gold from safety deposit boxes at the time of separation, that some is missing, and questions arise as to the value of such gold.
The inclusion of the gold in the division of property runs contrary to client expectations that such gifts were given for financial security.
Some courts have excluded the gold from family property, as in K. (M.A.) v. B. (E.I.), decided just after Bruker. Under family property division legislation in New Brunswick, the jewellery received as gifts or purchased with Mahr monies were excluded from division as the court found no evidence indicating the jewellery was used or to be used as a family asset.
In Kandola v. Kandola the wife’s gold, given as gifts during the marriage, were excluded from division of property, and because the value of the increase in the value of gold gifted at marriage was not adduced, it could not be included in the family property to be divided.
In Ontario cases, gold must be valued at the date of marriage and again the date of separation and then included in the NFP. Cultural expectations about the intention of the gold wedding gifts have no application in the courts. In Nadendla v. Nadendla the court had to determine in whose hands $50,000 of gold jewellery was last held and what divisible portion of such jewellery was, determining that $15,000 was to be included on the NFP based on date of marriage deductions and the value attributed to gifts.
The division of gold may not meet client expectations, but when dealing with such issues, credibility on who holds the gold and appraisals of such jewellery by a qualified jeweller familiar with traditional marriage pieces is of substantial value in litigation.
The Engagement Ring: A contractual and conditional gift
An engagement ring is more than a mere gift; the acceptance of such a ring is essentially entering into a contract to marry.
In D’Andrea v. Schmidt numerous attempts were made to get out of the need to return the ring, including a claim that the cause of action of breach of promise to marriage is discriminatory on the basis of sex, perpetuates discrimination on the basis of sex, has a discriminatory origin, is deeply rooted in historical sexism which is inconsistent with the equality provisions of the Charter. The court addressed each defence and determined the requirement to return the ring did not breach the Charter or offend human dignity and it was ordered that the ring be returned.
In Hood v. Skauge, 2015 ABQB 476, it was ordered the party could keep the engagement ring because it was proven that marriage was never seriously contemplated since there had been four engagements that were all broken off. The ring was found to be given without a promise to actually marry and as such was an unconditional gift.
The concept of fault in terminating the engagement impacts the issue of returning the ring. In G.L.M. v. T.D. the relationship ended after the man assaulted the woman, and the parties did not marry. The court held under equity and contractual principles there was no basis for ordering a return of the ring or compensation because of the assault. The court held the domestic violence incident precipitated the separation, and the woman had good reason not to complete the “transaction” for which the ring was given and if she was enriched at the man’s expense, there was a good reason.
In a multicultural society, family court and lawyers must balance a variety of cultural practices and enforce them in an equitable manner. The courts apply well-developed statutory regimes and jurisprudence to a variety of cultural practices. Such application often doesn’t meet the cultural expectations of the parties; however, meeting these expectations is simply not the task of the court or lawyer. The objective of an equitable application of statutes, rules and common law with an even hand to the parties is the proper objective.