Interplay Between Islamic Marriage Contracts and Canadian Family Law
Religious-based contracts, such as a Maher, can create increased complexity for the family justice system. A Maher is a contract which some Muslim couples will enter into upon marriage. The Maher can have the effect of requiring the husband pay the wife a specified amount of money if divorce occurs. The value can often be extravagant, such as hundreds of gold coins.
In Kariminia v. Nasser, 2018 BCSC 695, the court ordered that an Islamic marriage contract should be upheld such that the husband was required to pay the wife the value of 114 Bahar Azadi gold coins, equivalent to $49,020 CAD, upon the breakdown of their marriage. The court held that, as per Bruker v. Marcovitz, [2007] S.C.J. No. 54, a dispute can be addressed in the judicial atmosphere even if it has a religious aspect.
Further, people can freely choose to transfer moral obligations related to their religious orders into legal obligations. In upholding the Maher, the court further noted that Canadian law acknowledges cultural diversity (Nathoo v. Nathoo, [1996] B.C.J. No. 2720 (B.C. S.C.)). Ultimately, the Maher in Kariminia was an amount which the husband could realistically pay, the document was signed by both parties, and could be upheld as a valid marriage contract.
On multiple other occasions, the courts have also interpreted contracts for Maher by considering if they’re enforceable “marriage agreements” under family law legislation. In M. (N.M.) v. M. (N.S.), 2004 BCSC 346, the court held that the husband was aware of and understood the amount stipulated in the Maher. He recognized that the Maher was a legally binding document, and wished to marry in compliance with it and the Ismaili faith. The wife in M. (N.M.) was entitled to $51,250. In Amlani v. Hirani, 2000 BCSC 1653, a Maher was again upheld as a valid marriage contract under the Family Relations Act. As a note, the current Family Law Act would apply to marriage contracts entered into after March 2013.
Both the current Family Law Act and the prior Family Relations Act give the courts power to set aside agreements regarding property division on the basis of unfairness. And in Delvarani v. Delvarani, 2012 BCSC 162, the court did just that. The Maher was for the amount of 3000 Bahar Azadi gold coins, which equated to $750,000 CAD. The court held that the husband likely didn’t agree to this payout, especially on top of the financial obligations he’d already have to abide by under BC law. There was no connection between this exorbitant amount of money and the short duration of the marriage, the needs of the wife, nor the husband’s ability to pay.