Frequently, Muslims upon marriage will sign an Islamic Marriage Certificate, sometimes also titled a Marriage Contract. These are known as Mehrs. Mehrs will often contain a clause requiring the payment to the bride of a certain amount of money upon demand. These Mehrs will vary in the amount of the payment required but can contain payments that can be very substantial.
The enforceability of these Mehrs within the context of family law as opposed to simply being enforced by Islamic religious courts, has been a subject frequently debated and ruled upon by the courts.In the 2009 Superior Court of Ontario decision of Khanis v. Noormohamed, Madame Justice Backhouse, a highly experienced family law judge, upheld the validity of a Mehr which contained the following clause:
I hereby agree and undertake to pay an agreed sum of money $20,000.00 by way of Mehr to my said wife. I hereby agree, confirm and declare that my undertaking to pay the agreed sum of money by way of Mehr to my said wife shall be in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the lands,
Other Mehrs contain phrases as simple as, dower, pay on demand $20,000.00. These simple words inserted in an Islamic Marriage Certificate may be interpreted by a court as being a Domestic Contract pursuant to Section 55 of the Family Law Act. A marriage contract is a form of a domestic contract.One would have thought that the courts would have been reluctant to enter into the religious battleground when many religions have their own internal judicial systems for administering sectarian law.
However, such an assumption would be incorrect.Courts across Canada have differed on whether traditional Marriage Contracts under Muslim Law are enforceable. The Ontario Courts, as recently as 1998, in a decision of Justice Rutherford, held that the courts should not determine rights and obligations of the parties under the Mehr as it would lead the court into the religious thicket.
However, the world changed when the Supreme Court of Canada in the 2007 decision of Bruker v. Marcovitz held that the fact that a dispute has a religious aspect, does not make it non-justiciable (one has to love legal speak, non-justiciable means non enforceable or not properly before the courts). The Supreme Court of Canada went onto say that people can transfer their moral obligations into legally binding ones.Justice Backhouse then went on in the Khanis case to apply the requirements under Section 55 and 56 of the Family Law Act to determine whether or not the Mehr met the requirements of a valid and enforceable Domestic Contract. In the Khanis case, the court held that it did meet those requirements and was indeed enforceable and was a right that the wife was entitled to over and above all the other rights that she had under the laws of Ontario and Canada.
Even though the Mehr did not say when the $20,000.00 was payable, Justice Backhouse found that it was immediately payable whenever the wife simply demanded it. Indeed, Mehrs are generally interpreted within Islamic law as an on demand promissory note which the wife can call for payment at any time during the marriage and not simply upon its end.To reinforce the decision of Justice Backhouse, it was appealed by the losing husband to the Ontario Court of Appeal where on February 15th, 2011, it upheld Justice Backhouses decision specifically including and commenting upon the accuracy of her findings with respect to the Mehr.
The obvious conclusion is that one should not enter into a Mehr lightly as it is in reality no different than any other Domestic Contract. Especially upon second marriages, Dale Streiman Law L.L.P. urges its clients to undergo the emotionally difficult but essential process of having a Marriage Contract drawn up, before the marriage. It is insurance money well spent.