Canadian Lawyer

by the husband (Cohen is representing the wife, who was granted interim support), was in the courts last month. The case also involves an Iranian couple. ���There���ve now been three judges that have touched this case��� without being well informed on Islamic marriage contracts, including mahr, says Cohen. ���The temptation is to look at it as a Canadian marriage contract,��� and ask how much the wife is getting for the length of marriage, and related questions, rather than what is stipulated in the couple���s contract. ���Why are we concerned about what Iranian law says about marriage contracts in Canada?��� asks Cohen regarding Yar. ���There wouldn���t be any other precedent where you would be litigating a contract in Canada under the [supposed] laws of another country.��� Cohen, like Emon, suggests a case like this has more to do with the husband not wanting to pay the amount of mahr promised to the wife in the marriage contract. Given the division across jurisdictions on the enforceability of the mahr, Emon thinks couples signing Islamic marriage contracts in Canada must be realistic about their potential for enforceability. ���If it���s an illusory promise, it has no weight,��� at least in a jurisdiction such as Ontario, where trial judges have not consistently viewed the wife���s entitlement to mahr favourably. ���They need to imagine . . . their Islamic marriage law in a context of legal pluralism. . . . Muslims getting married need to recognize that these are [enforceable] contracts, but in Ontario, the mahr may not be enforced.��� Also, while ���it���s not an unfair assumption to say some people see mahr as symbolic . . . if [the mahr is] really about symbolic gesturing, and status, [the bride and bridegroom] need to come to terms with that.��� In Islamic legal doctrine, says Emon, a husband can pay a portion of the mahr ���up front,��� and have the rest deferred to the end of the marriage ��� divorce or death of the husband. Emon suggests brides ask for the value ���paid up front,��� which will likely reduce the mahr amount, but will get it paid immediately and avoid potential litigation later. Judges and lawyers alike need to develop a better understanding of what the Islamic marriage contract is and is intended to be, including mahr provisions. ���I think that if you want to practise family law in a city like Toronto or Vancouver, where there is a culturally varied population, then you have to know something about these issues, relating to marriage laws and contracts, whether it be Christian, Judaic, or Islamic,��� or other, says Bastedo, who has been practising family law since 1971. Lawyers will see more of the Islamic marriage contracts, ���but only because everybody is now involved in the matrimonial dispute area, and a generation ago, most of these types of issues were not dealt with in the courts,��� he says. ���A lot of these issues were dealt with in the Islamic, or Judaic, tribunals.��� As to where the courts are heading on this issue, ���There are four active cases right now, live, that haven���t rendered any decisions,��� says Jamal. ���I think once these four decisions come out, we���ll have a better idea. Khanis v. Noormohamed is the only time an appellate court has dealt with the issue.��� In it, the Ontario Court of Appeal confirmed, in 2011, the mahr portion of the marriage contract was valid and binding, and excluded it from the wife���s net family property, finding to do otherwise would render the contract meaningless. Jamal believes Canadian courts will, in time, ���say, ���We���re going to enforce them like any other marriage contracts,������ and require the parties to adhere to the terms of the agreement as written and signed, subject to it meeting the terms of a contract (e.g., full financial disclosure, the absence of duress, and formalities such as witnessing). ���I think that because there is a split in the provinces in this issue, I don���t think it���s going to go away,��� concludes Emon. ���Any resolution will have to understand how we understand religious law in our [Western/Canadian] context.��� www.CANADIAN hildview_CL_Mar_13.indd 1 L a w ye r m a g . c o m March 2013 41 13-02-07 7:08 AM

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