Separation of church and state

Separation of church and state
Illustration: Jacqui Oakley
When two Iranian medical doctors married in a civil ceremony in London, England in 1991 — and again in an Islamic marriage ceremony in Berlin two years later — the wife had no reason to think the terms of her marriage contract would be questioned in Canada, where the couple later settled and then separated after 13 years.

Yet that’s the position Roya Fatemeh Yar found herself in when her husband challenged her right to the “mahr” that is standard in the Islamic marriage contract: that is, the material provisions a bridegroom agrees to make for his bride upon marriage, sometimes translated as dower. In the Yars’ case, the mahr was valued at $741,643.

At trial, the judge heard from two expert witnesses, both university professors but with vastly divergent opinions of what constituted a valid mahr and, in fact, a valid Islamic marriage. The judge accepted the opinion of one (the more conservative) expert, finding “the Islamic marriage between the parties is void,” and the amount claimed for the mahr was “completely out of line and unreasonable.”

Last September the Ontario Court of Appeal ordered a new trial in Yar v. Yar, but the case underlines the confusion and difficulty Canadian courts have had dealing with Islamic marriage contracts, the terms of which are increasingly being contested on divorce. “What you have is a textbook case of legal pluralism,” says Anver Emon, an associate professor in the University of Toronto’s Faculty of Law, whose research focus includes premodern and modern Islamic legal history and theory. “We’re trying to fit two puzzles together into a master puzzle,” says Emon, who provided expert opinion in Yar.

At issue is the notion of an Islamic marriage contract as “religious,” and therefore needing to conform to a particular Islamic code of conduct. In fact, says Emon, Islamic law covers both religious and secular matters, and mahr is a feature of contract formation on the Islamic contract side. But the Western tradition of separating church and state may cause the courts to see “all Islamic law as religious,” he says. “I think marriage in Islam is often misunderstood,” concurs Fareen Jamal, an associate lawyer at Bales Beall LLP in Toronto whose practice includes matrimonial law and litigation.

“There’s no religious element to marriage in Islam,” says Jamal, who has written on the subject of the enforceability of mahr in Canadian courts. “Marriage is a contract that can be brought to an end.” And the Islamic marriage contract, including the portion concerning mahr, “is like any other marriage contract [between] two consenting adults.”

However, there are varying schools of thought in Islamic tradition, and when the courts invite experts to give testimony “and don’t understand they come from different schools of thought — that’s when it starts to get really murky and misunderstood,” he says. For example, in Yar, the trial judge accepted the testimony of the expert who claimed, because the husband was not Muslim (or, at least, was only nominally so), the marriage contravened Islamic law, as traditionally Muslim women are not permitted to marry non-Muslim men. Jamal (herself an Ismaili Muslim) disagrees with that interpretation, as does Emon, viewing the Islamic marriage contract as a civil contract.

Tom Bastedo, of Toronto family law firm Bastedo Stewart Smith, represented Roya Fatemeh Yar on appeal and cites the problem of liberal versus conservative interpretations of Islamic law. “The legal structure of the rules varies among the various Muslim schools of law. They’re codified differently, in different countries,” he says.

Bryan Smith, a partner in the same firm, has seen three cases in the past year involving young Muslim couples marrying, who all regarded entering into an Islamic marriage contract as a formality and not binding. The amount of the mahr can connote the bridegroom’s family status, as well as the bride’s family status, and may be discussed at the wedding ceremony. Indeed, in Yar, the trial judge found the couple’s Islamic marriage ceremony in Germany had been “staged for ostentatious reasons rather than for religious purposes” in order to satisfy the bride’s father, and even if the marriage was valid from an Islamic perspective, “the amount that the husband paid for the wedding ceremony [$30,000 plus a mink coat] at the time of the marriage is sufficient to satisfy his obligations under the Maher [mahr].”

“Depending on which side of the coin you want to look at” the contracts from, says Bastedo, “they don’t make a lot of difference” from the point of view of some young people marrying and signing them, while “another strong point of view is that these contracts are very serious, and defined in the Koran. The problem is the impact of religious jurisdiction on the prima facie statement that it’s a civil contract, and always enforced.”

Islamic marriage agreements “seem to be coming up more and more” in the legal system, says Dana Cohen of the Law Offices of Avra Rosen in Toronto. “I’ve been practising [family law] for 13 years, and recently have seen two cases like this.”

One such case, Khabazzy v. Esfahani, in which the amount of mahr promised in the marriage contract is being contested 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.”

Free newsletter

The Canadian Legal Newswire is a FREE weekly newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered every two weeks, providing targeted news and information of interest to in-house counsel.

Please complete the form below to receive the weekly Canadian Legal Newswire and/or the Canadian Inhouse Legal Newswire.

Recent articles & video

Daphne Dumont to receive CBA’s Cecilia I. Johnstone award

Quebec taking harsh line on cannabis edibles

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?

Copyright law: set for an overhaul?

Corporate Counsel Survey 2019 closes on Monday, Aug 26

When Legal Aid is a political prop, Access to justice suffers

Most Read Articles

The Ontario government is destroying university legal clinics

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?

Quebec taking harsh line on cannabis edibles

When Legal Aid is a political prop, Access to justice suffers