LEGAL REPORT/Family Law
Separation of
church and state
The enforceability and status of Islamic marriage contracts in Ontario,
and the rest of Canada, is still in flux. by Elizabeth Raymer
on divorce. ���What you have is a textbook
case of legal pluralism,��� says Anver Emon,
an associate professor in the University of
Toronto���s Faculty of Law, whose research
focus includes premodern and modern Islamic legal history and theory. ���We���re try-
ing to fit two puzzles together into a master
puzzle,��� says Emon, who provided expert
opinion in Yar.
At issue is the notion of an Islamic
marriage contract as ���religious,��� and
therefore needing to conform to a
www.CANADIAN
L a w ye r m a g . c o m
March
2013
39
Jacqui Oakley
W
hen two Iranian
medical doctors married in
a civil ceremony
in London, England in 1991 ��� and again in an Islamic
marriage ceremony in Berlin two years
later ��� the wife had no reason to
think the terms of her marriage contract would be questioned in Canada,
where the couple later settled and then
separated after 13 years.
Yet that���s the position Roya Fatemeh
Yar found herself in when her husband
challenged her right to the ���mahr��� that is
standard in the Islamic marriage contract:
that is, the material provisions a bridegroom agrees to make for his bride upon
marriage, sometimes translated as dower.
In the Yars��� case, the mahr was valued at
$741,643.
At trial, the judge heard from two expert witnesses, both university professors
but with vastly divergent opinions of what
constituted a valid mahr and, in fact, a
valid Islamic marriage. The judge accepted
the opinion of one (the more conservative)
expert, finding ���the Islamic marriage between the parties is void,��� and the amount
claimed for the mahr was ���completely out
of line and unreasonable.���
Last September the Ontario Court of
Appeal ordered a new trial in Yar v. Yar, but
the case underlines the confusion and difficulty Canadian courts have had dealing
with Islamic marriage contracts, the terms
of which are increasingly being contested
