Experts and Cultural Considerations in Divorce Cases
If you or your lawyer are participating in a divorce trial that includes a marriage, property or parenting rights that have occurred in a foreign jurisdiction with cultural considerations that a judge may not be familiar with, consider bringing an expert on cultural issues for that country. The expert does not always have to be a lawyer practicing in that jurisdiction.
In a recent Alberta case, MF v MSY, 2020 ABQB 383, the Court of King’s Bench addressed how to bring cultural and women’s issues into evidence in a divorce proceeding. In this case, the parties were married in Iran, and submitted expert evidence of Iranian culture to the Court on the matters of the dowry custom and women’s issues in Iran. A University Professor was qualified as an expert in Iranian studies (para 33). The expert explained to the Court that “a dowry is considered a promise by the husband for a gift to the wife and if it is in the marriage contract it is something that must be given to the wife. The wife can ask for it at any time during the marriage and the husband should obtain a receipt for it; although this usually does not happen. Normally, the dowry is identified in the marriage contract and then it is not requested unless the parties divorce or if the husband passes away and the wife needs funds before his estate is distributed.” (para 35).
The expert also deposed on women’s issues and property rights. The expert explained that (para 40), “it is customary for women to hold properties in Iran in their own name; a woman’s ownership of property purchased or owned prior to marriage is respected. She advised that “private properties,” being whatever a woman has before she marries, and those properties she buys later on that are in her name, are considered hers. The wife is not expected to put those properties in her husband’s name once married.”
On the issue of divorces in Iran, the Court quoted from the expert at para 43-44:
She also explained that a divorced woman may be frowned upon, depending on her cultural background and social class, but she noted that divorce is becoming more common in Iran. In fact, Iran has one of the highest divorce rates per capita in the world. It has become more common in the past decade as more and more women are entering the workforce and obtaining a higher education. She stated that children of divorced parents are apparently looked upon differently and it is especially hard for girls of divorced parents, particularly when they want to marry later on.
I accept the Professor’s evidence in regards to the cultural expectations of an Iranian marriage and I note that many of those expectations appear to have played out in this case.
If you are seeking to explain to the Court why cultural considerations or norms may have influenced your divorce proceedings, or how best to handle matrimonial property located in a foreign jurisdiction, it is important to lead that evidence with an expert who can relate cultural norms and expectations to the Court.