Maher (Mahr) in a BC Divorce: When Courts Enforce It

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As Muslims around the world observe Ramadan, we wanted to take this opportunity to shed some light on a vital aspect of Islamic marriage contracts: Maher.

Maher, also spelled as mahr, mahar, mehr, or mehrieh, is a contractual dowry that some Muslims enter into upon marriage. It is not the marriage contract itself but a separate agreement that the husband undertakes to pay to his wife in the event of death or divorce. While the concept of dowry is common in many cultures, Maher is distinct in that it is considered a wife's right and is mandatory.

In Islamic law, Maher is a contribution or gift from the husband-to-be to his wife-to-be. It is given as a mark of respect and recognition of her independence, and it serves as a financial safety net for her in the case of a divorce or her husband's death. However, unlike a traditional gift, Maher is not optional but rather an obligation that the husband must fulfill.

Maher can take various forms, including money, property, or even acts of service. The amount or nature of the Maher is agreed upon by both parties before the marriage contract is signed. This way, the wife knows what she is entitled to if the marriage ends in divorce or if her husband passes away.

Maher is a crucial aspect of Islamic marriage contracts because it safeguards the financial security of the wife. It also reflects the Islamic values of respect for women's autonomy and the recognition of their contributions to the marriage. Additionally, Maher helps prevent the mistreatment of women in cases of divorce, as it ensures that the wife is not left without resources after the marriage ends.

A Maher is an essential part of Islamic marriage contracts and serves as a financial safety net for the wife in case of divorce or her husband's death. However, enforcing a Maher agreement in Canada can be challenging and raises complex questions about the interaction between Islamic marriage and divorce laws and federal and provincial legislation.

Under Islamic law, a Maher does not require a written agreement and can be enforced without one. However, to be treated as a spousal agreement respecting property division under British Columbia legislation, it must be in writing and each spouse's signature must be witnessed by at least one other person. That is the description used in section 93(1) of the Family Law Act, and it matters: under section 94(2), the Supreme Court may not make a property division order over an agreement that meets that description unless all or part of the agreement is first set aside under section 93. Each Maher agreement is then interpreted on its own terms and in light of the parties' intentions at the time the contract was made.

Litigating Maher agreements raises challenging questions as Islamic marriage and divorce laws do not always align with federal and provincial legislation. It is worth clearing up one common misunderstanding here: Canadian law does not require both spouses to agree to a divorce. Under section 8 of the Divorce Act, a court "may, on application by either or both spouses, grant a divorce" on the ground that there has been a breakdown of the marriage, and breakdown is established only where the spouses have lived separate and apart for at least one year immediately before the divorce is determined (and were living separate and apart when the proceeding started), or where the spouse against whom the proceeding is brought has committed adultery or has treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. One spouse can therefore obtain a divorce over the other's objection. What Islamic and Canadian law treat differently is who ends the marriage and on what terms. A religious divorce and a civil divorce are separate processes, and obtaining one does not automatically deal with the other. Canadian law also prohibits discrimination on the basis of gender, while some traditional interpretations of Maher require only the husband to pay a dowry to his wife.

Despite these complexities, Maher agreements have been recognized as valid in Canadian cases. However, whether a Maher is awarded or not depends on the particulars of each case. Each Maher is to be interpreted on its own terms and in consideration of the intentions of the parties at the time the contract was made. For example, if a Maher is found to be unconscionable or against public policy, it may not be enforced. Additionally, it's important to ensure that the Maher is fair and reasonable to both parties and complies with Canadian laws.

Despite the challenges, Maher agreements have been recognized as valid in Canadian cases, sometimes awarded, sometimes not, depending on the specifics of each case. To enforce a Maher agreement in a Canadian court, it must adhere to applicable laws and requirements for a valid and binding contractual agreement between two parties.

Case Law from British Columbia

Here is a list of some cases from British Columbia that have determined the enforceability of Maher agreements:

1. Nathoo v. Nathoo, 1996 CanLII 2705: In this case, the court was presented with two issues: whether the wife was entitled to $51,250 from the husband through a "Maher", a form of marriage contract recognized by their Ismaili faith, and whether the wife receive child and spousal support. As per the Maher contract, the husband agreed to pay the wife $51,250 upon separation, in addition to any entitlement she may have under the law. The court mainly held in favor of the wife, as previous cases have recognized the enforceability of a Maher in court. Thus, there was no reason not to enforce the Maher contract against the husband. She also received spousal support on top of the Maher payment.

2. Kariminia v. Nasser, 2018 BCSC 695: In this case, the wife wanted to rely on the Maher agreement made between them. The court recognized that the Canadian courts in British Columbia and Ontario have recognized the enforceability of Iranian marriage contracts containing Maher provisions, provided that they meet the definition of "marriage agreement" under the applicable family law legislation. In this case, the marriage contract in question was signed in 1994 and met the definition of "marriage agreement" under the Family Relations Act (the previous BC provincial statute before the Family Law Act was in place). The agreement clearly stated the amount of the Maher payment in gold coins and was signed by both parties. The contract was found to be fair, and as a result, the wife was granted a judgment against the husband for $49,020 in accordance with the Maher provisions.

3. Aziz v. Al-Masri, 2011 BCSC 985: In this case in British Columbia, the wife sought to enforce the dowry provision of the parties' Jordanian marriage contract, commonly referred to as a "Mahr" or "Maher" agreement. The court reviewed Canadian cases upholding similar contracts but ultimately found that the dowry provisions were not enforceable. One of the issues was whether the wife was actually a party to the contract or whether it was solely her uncle's responsibility. Additionally, there was no expert evidence presented regarding the validity and enforceability of the contract under Jordanian law. As a result, the court was unable to determine whether the contract was enforceable under either Canadian or Jordanian law.

Conclusion

It is essential to note that enforcing a Maher agreement in Canada requires careful legal guidance. Because a Maher is, at its core, a family law agreement, the same formalities that make any family law agreement binding in BC apply to it, and a divorce lawyer in Surrey can deal with the Maher and the divorce together. Consult with our experienced family lawyers, serving clients across Metro Vancouver from our Surrey office, who can advise on the specifics of your situation and the enforceability of your Maher agreement under BC and Canadian law. Book a free consultation about your Maher agreement or call us at (778) 381-9977.

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