Canadian Lawyer

LEGAL REPORT/Family Law ���I think marriage in Islam is often misunderstood. There���s no religious element to marriage in Islam. Marriage is a contract that can be brought to an end.��� Fareen Jamal, Bales Beall LLP particular Islamic code of conduct. In fact, says Emon, Islamic law covers both religious and secular matters, and mahr is a feature of contract formation on the Islamic contract side. But the Western tradition of separating church and state may cause the courts to see ���all Islamic law as religious,��� he says. ���I think marriage in Islam is often misunderstood,��� concurs Fareen Jamal, an associate lawyer at Bales Beall LLP in Toronto whose practice includes matrimonial law and litigation. ���There���s no religious element to marriage in Islam,��� says Jamal, who has written on the subject of the enforceability of mahr in Canadian courts. ���Marriage is a contract that can be brought to an end.��� And the Islamic marriage contract, including the portion concerning mahr, ���is like any other marriage contract [between] two consenting adults.��� However, there are varying schools of thought in Islamic tradition, and when the courts invite experts to give testimony ���and don���t understand they come from different schools of WHAT DO MORE THAN 3,500 CANADIAN LAW FIRMS HAVE IN COMMON? DIVORCEmate They all use for their family law needs! FORMS One ...for family law court forms PRECEDENTS One ...for comprehensive domestic contracts TOOLS 2k ...for child and spousal support calculations Visit www.divorcemate.com for your 30-day FREE Trial. Specialists in Canadian Family Law 40 ntitled-1 1 March 2013 www.CANADIAN 1-800-653-0925/ 416-718-3461 ext: 407 sales@divorcemate.com www.divorcemate.com thought ��� that���s when it starts to get really murky and misunderstood,��� he says. For example, in Yar, the trial judge accepted the testimony of the expert who claimed, because the husband was not Muslim (or, at least, was only nominally so), the marriage contravened Islamic law, as traditionally Muslim women are not permitted to marry non-Muslim men. Jamal (herself an Ismaili Muslim) disagrees with that interpretation, as does Emon, viewing the Islamic marriage contract as a civil contract. Tom Bastedo, of Toronto family law firm Bastedo Stewart Smith, represented Roya Fatemeh Yar on appeal and cites the problem of liberal versus conservative interpretations of Islamic law. ���The legal structure of the rules varies among the various Muslim schools of law. They���re codified differently, in different countries,��� he says. Bryan Smith, a partner in the same firm, has seen three cases in the past year involving young Muslim couples marrying, who all regarded entering into an Islamic marriage contract as a formality and not binding. The amount of the mahr can connote the bridegroom���s family status, as well as the bride���s family status, and may be discussed at the wedding ceremony. Indeed, in Yar, the trial judge found the couple���s Islamic marriage ceremony in Germany had been ���staged for ostentatious reasons rather than for religious purposes��� in order to satisfy the bride���s father, and even if the marriage was valid from an Islamic perspective, ���the amount that the husband paid for the wedding ceremony [$30,000 plus a mink coat] at the time of the marriage is sufficient to satisfy his obligations under the Maher [mahr].��� ���Depending on which side of the coin you want to look at��� the contracts from, says Bastedo, ���they don���t make a lot of difference��� from the point of view of some young people marrying and signing them, while ���another strong point of view is that these contracts are very serious, and defined in the Koran. The problem is the impact of religious jurisdiction on the prima facie statement that it���s a civil contract, and always enforced.��� Islamic marriage agreements ���seem to be coming up more and more��� in the legal system, says Dana Cohen of the Law Offices of Avra Rosen in Toronto. ���I���ve been practising [family law] for 13 years, and recently have seen two cases like this.��� One such case, Khabazzy v. Esfahani, in which the amount of mahr promised in the marriage contract is being contested The Ontario Court of Appeal���s Yar v. Yar decision is available at: ontariocourts.ca/decisions/2012/2012ONCA0658.htm. L a w ye r m a g . c o m 13-02-14 3:45 PM

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