When I first read The Globe and Mail article about the case of Ossama Aziz and Huwayda Al-Masri, I was intrigued by the complexity of the diversity issues at play — a divorced Iraqi-American woman asking the Superior Court of British Columbia to apply a Jordanian marriage contract against her Iraqi-Canadian ex-husband and issue payment of mahr that she claimed was due as a consequence of the failure of the marriage. It is a simple matter of contract, the ex-wife’s lawyer argued. But the BCSC decision is an illustration of why, on so many levels, such cross-cultural matters may not be simple at all.
According to the marriage contract that was executed under Islamic law in Jordan, the couple married in 1997. She was 19 and listed as a housewife and he was 29, listed as a student, and previously divorced. A stipulation covered a “dowry” of 70 g of 21-karat gold that was paid in advance and 55 g of 21-karat gold to be paid upon “legal maturity.” The two contracting parties were noted as the husband and the wife’s attorney-in-fact, her uncle Nameer. The wife’s attorney-in-fact stated that he had indeed received the advance of the “dowry” from the husband. The wife also signed the marriage contract. Mosaic Translation Services in Vancouver provided the translation of the marriage contract, and used the term “dowry” to translate the term mahr.
Under Islamic law, mahr is paid by the husband to the wife for her to spend as she wishes. It is a gift that is often only partially conveyed prior to the marriage with the balance to be paid in full upon dissolution of the marriage. Dissolution can occur by death of the husband, divorce initiated by the husband through the decree of “talaq,” or by the wife if she has serious cause.
Mahr is quite different from the Indian custom of dowry that, although now illegal in India, is in many cases still paid by the bride’s family to the groom’s family. In India, the story behind the dowry custom is that the bride is given to the groom’s family. She becomes part of the groom’s family and the dowry is the recognition of the additional expense she will cause. It is a wholly abhorrent practice that in my opinion creates many levels of subservience and vulnerability, cloaked within the myth of the ideal loving family unit and obscured by the emotional language that attaches to such notions.
In contrast, mahr is a living and legal notion under Islamic law. It is paid by the husband to the wife. It is not meant to be used for the daily living expenses of the couple, but is meant for the wife to use as she wishes. Although it may be very difficult for the wife to exercise mahr outside of clearcut cases where the husband initiates the divorce by declaring “talaq,” it is clear under Islamic law that mahr is a gift payable from the husband to the wife.
Throughout the Aziz v. Al-Masri decision, Justice Arne Silverman refers to the “dowry.” He first applies Canadian law to the marriage contract and finds since the wife is not stipulated as the beneficiary of mahr, it cannot give rise to an order in her favour. After reviewing the English translation of the marriage contract, Silverman found it was “not at all clear that she [the wife] is a party to the contract.” Although he was willing to accept her signature on the marriage contract as evidence that she was a party to those aspects of the marriage contract that related to the marriage itself, he was not willing to find that she was the intended recipient of mahr.
He then applied Jordanian law to the marriage contract and stated that because no expert evidence was presented showing that under Jordanian law the wife had the right to demand execution of mahr, the marriage contract would fail under Jordanian law as well. Silverman did not have confidence that the translation of the marriage contract was a complete presentation of the Jordanian law on the matter.
According to Jabeur Fathally, an Islamic scholar, “by taking this literal and reductionist approach the judge preferred to hide behind the tree of conformity, in order not to invoke other arguments to refuse mahr, by stating that it was against gender equality or public order, for example. By so doing, he also avoided the forest of cultural and identity questions relating to the causes of the divorce claimed by each of the spouses and on the location and meaning of mahr within the framework of Islamic family law.”
In her book, Muslim Marriage in Western Courts: Lost in Transplantation, Pascale Fournier describes mahr not as a static legal concept, but one that has an active function in the life of the couple, starting with the negotiation of mahr (in favour of the wife or the husband depending on the level of societal power each one is perceived to have), during the marriage, and upon dissolution. She states: “Mahr has the potential to assert a continuing regulatory power of the husband and wife throughout the marriage. This form of power may control or influence their decision to remain with the institution, their performance of respective marital duties and their use of power to strike a bargain. Bargaining in the shadow of mahr inevitably means bargaining in the shadow of divorce, because what is at stake during marriage is the (in)visible presence of its dissolution, and with it the possibility, among other things, that deferred mahr will be due.”
Fournier argues that within Islamic cultures, mahr can be interpreted in relation to other marital duties. However, upon transplantation to Western societies it loses the fullness of its role and meaning. After reviewing several cases in Canadian, American, German, and French courts, which arrive at a number of varying results, she concludes that in Western societies, mahr can only be about distribution of money and jurists should make this a primary consideration rather than trying to create a “perfect judicial posture for all scenarios.”
As a daughter of immigrants to Canada that came to North America in the late 1950s, I have begun thinking of immigration as a process rather than an end result. The stories of immigrants vary widely, depending on gender, levels of education, adaptability, skills, and resources. Many of the ideas that one is raised with are rooted in another place. Attempts to breathe life into, or nurture these ideas on foreign soil as they would have been “at home” are not achievable goals. Some basic ingredient will always be missing or different. This is a fact that both the immigrant and the state have to deal with as best we can.
Perhaps, at least in the case of Islamic marriage agreements, if we shift our focus to the fairness of the distribution of assets in marriage and in divorce, and away from a preoccupation with religious rights and gender equality (or fear of landing on the wrong side of these arguments), we will arrive at a fairness compatible with Canadian law that has more predictability for the parties involved. However, in order to do so, we will need to do a much better job at increasing our understanding of non-Western concepts. We live in a globalized world and more cases like Aziz v. Al-Masri are on the horizon.