Enforceability of Mahr in Alberta

In certain traditions, including those governed by Islamic or Jewish laws, parties may enter into contracts that will require a previously agreed payment by the Husband to the Wife at the time of separation or in some cases, at the time of marriage. This blog will explore such contracts and the case law in Alberta and Canada with respect to same. Our Calgary Family Lawyers at OP Lawyers LLP can provide you guidance and advice depending on your situation and the type of contract signed before the marriage. 

In Islamic traditions, the mahr is considered the exclusive property of the wife and is an obligatory payment made by the husband to the wife as part of the marriage contract. It is not a gift given at the discretion of the husband but rather a mandatory provision of the Islamic marriage contract, or the Nikah. The mahr can be paid upfront, deferred, or divided into both upfront and deferred payments, and it is intended to provide financial security to the wife. 

In essence, mahr is a form of pre-nuptial agreement. The mahr is not intended to be part of the matrimonial property but rather the property of the wife not subject to division in the event of breakdown of the marriage. However, the Courts in Canada have long been divided on the enforceability of the mahr. In some cases, the Courts have refused to enforce a mahr on the ground that it is a religious contract and therefore cannot be enforced by a civil court.

The Supreme Court of Canada in the case of Bruker v. Marcovitz, [2007] S.C.J. No. 54 held that a dispute that has a religious aspect does not make it non-justiciable by a civil court. Since then, Courts across Canada have enforced mahr as a valid and binding marriage contract. This principle governs contracts involving other faiths and religions as well. For example, the Supreme Court in Bruker enforced a marriage contract under Jewish law. 

For example, in the Ontario case of Khanis v. Noormohamed, [2009] O.J. No. 2245, found that the marriage contract was executed in writing, witnessed by individuals and officiated by a Mukhi and Kamadia and therefore enforceable in Ontario. Courts in British Columbia have also held that a mahr may be a valid and binding marriage contract. However, there are certain mandatory requirements applicable to marriage contracts that a mahr must comply with in order to be enforceable. If such conditions are not followed, a mahr will not be enforceable.

In Alberta, marriage contracts pertaining to exclusion of property from family property, are governed by the Family Property Act (formerly the Matrimonial Property Act). Under section 38 of the Family Property Act, a marriage contract, referred to as an interspousal contract, must meet specific requirements to be binding between spouses.

These requirements are as follows:

1. Written Agreement: The contract must be in writing and signed by each spouse in the presence of a witness. This ensures that the agreement is formalized and documented properly.

2. Voluntary execution: The parties to the agreement must have entered the agreement voluntarily and without any compulsion from the other party.
3. Acknowledgment of Terms: Each spouse must provide a written acknowledgment, made in the absence of the other spouse, stating that they understand the nature and effect of the contract. This acknowledgment must also confirm that they are aware of the potential future claims to property under the Act and that they intend to waive those claims to the extent necessary to give effect to the contract.
4. Independent Legal Advice: The acknowledgment must be made before a lawyer who has no connection to the other spouse. This requirement ensures that each spouse receives independent legal advice and fully understands their rights and obligations under the contract.

It’s important to understand that these requirements are mandatory and the Court has no discretion or power to waive them. For example, in the case of Nasin v. Nasin, [2008] A.J. No. 390, the Alberta Court of Queen’s Bench found that while the mahr was a valid contract, it was not an enforceable marriage contract under the then Matrimonial Property Act. In that case, the mahr was an oral contract and none of the other mandatory conditions were satisfied. Accordingly, the mahr was considered to be an unenforceable marriage contract.

Requirements under other provinces are governed provincial legislation that applies in those provinces. For example, in the Ontario case of Khanis v. Noormohamed, [2009] O.J. No. 2245 mentioned earlier, the legislation required that the marriage contract be in writing and witnessed. In Alberta, there are additional requirements such as execution of an acknowledgement and obtaining independent legal advice. 

These requirements can easily be satisfied where the marriage takes place in Canada. However, problems can arise where marriages take place outside Canada. In many South Asian countries such as Bangladesh, India and Pakistan, there are statutory forms of marriage contracts that are applicable in those jurisdictions. Such forms may or may not comply with the requirements applicable in Alberta. In Iran, these contracts are called Mehriyeh and are affectively a form of alimony paid to the wife at the time of separation. 

For example, in Bangladesh, a marriage contract or Nikah nama, will be in writing and signed by the parties and a local Government official. However, there will not be any acknowledgment or certificate of any lawyer. In such a case, despite the intention of the parties that the mahr should be treated as exempted property, a court may not find the Nikah nama to be a valid marriage contract under the Family Property Act. As a result, the intention of the parties at marriage may not be enforceable in Canada and the property would be subject to equal division upon divorce.

For this reason, it is important to seek legal advice before entering into religious marriage contracts in order to understand its enforceability in Alberta. These factors are often not considered to be important at the time of marriage. However, in the event of a breakdown of the marriage, these issues are likely to cause disputes between the parties which can lead to expensive and prolonged litigation.

At OP Lawyers LLP, our Calgary family lawyers with multi-cultural backgrounds are experienced in family law disputes, mediation and litigation of these disputes. If you are facing any issues in your construction project, feel free to reach out to OP Lawyers LLP for a consultation with our calgary family lawyers.

Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. For advice specific to your circumstances, please consult a qualified lawyer at OP Lawyers LLP or another legal professional.