Enforceability Of Islamic Marriage Contracts
The Islamic marriage contract known as a “Maher” or “Mahr” or “Nikah Nama” has been considered in a number of reported decisions across Canada, however, the court’s have had differing views with respect to the enforcement of Islamic Marriage Contracts.
The recent Ontario Superior Court decision of Yar v. Yar holds that courts should avoid undergoing any analysis of whether a marriage contract is valid under Islamic law. The Court opined that to be enforceable in Ontaro the marriage contract must meet the statutory requirements for a valid marriage under Ontario’s Family Law Act. Of particular importance is the determination of whether or not the Mahr was entered into voluntarily and understood by both parties.
In Yar the parties were married in England in 1991 in a civil ceremony. One of the parties was a non-Muslim as he was an atheist. Two years later the parties had a formal Islamic ceremony. The Mahr provided that there would be a payment of 1,000,000.00 German Marks from the husband to the wife if the marriage ended. 13 years later the parties separated and the wife’s position was that she was owed over $700,000.00 (CDN) as a result of the Mahr. This was above and beyond any equalization payment that was owed by virtue of a division of matrimonial property.
In order to interpret the Mahr the court utilized the opinion of experts in Islamic law. Professor Liyakat Takim gave evidence that the Islamic marriage would likely be void under Islamic law as the marriage itself was a contravention of Islamic law by virtue that it was a marriage between a Muslim and non-Muslim. The Court went on to set aside the marriage as a result of it being invalid under Islamic law.
The Wife appealed to the Ontario Court of Appeal which directed that the matter be returned to the Ontario Superior Court for a new trial. The Court of Appeal held that the Ontario Superior Court provided inadequate reasons.
The matter was retried and the analysis is very helpful. The new trial judge put less weight in the expert opinions, considering them “interesting” rather than significant evidence. The court went on to hold that the most important factor is if the contract is valid under Ontario law. The issue of if the contract is valid under Islamic law is not determinative. The Mahr should be viewed in the same light as any other domestic contracts.
The form and substance of the contract as it related to the Family Law Act in Ontario was front of mind for the court. In Yar the Mahr was in writing and was signed by both parties and witnessed. The Court went further to inspect the precise wording of the contract and the parties understanding of the material in the contract were examined. The Mahr was written in Arabic, however, neither party spoke, wrote or could read Arabic. The Court also concluded that the Husband did not partake in the negotiations of its terms, he did not have Independent Legal Advice and was unclear as to the amount of currency he was agreeing to pay in advance.
The Court set aside the agreement and the Justice Walters held that a court must be “satisfied that the parties to the agreement were of like mind, knew what they were agreeing to, and were agreeing to be bound by the terms of the contract.”
Yar is instructive in that courts should look to the essential terms that create a valid marriage under the statute in that province, in Alberta that is the Marriage Act. Furthermore, the court should make inquires as to whether or not the parties had a consensus meeting of the minds with respect to the terms of the Mahr.