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Muslim parties married in nikah ceremony before receiving civil divorce orders not spouses: court

Parties to religious marriage must ensure compliance with provincial and federal laws

Muslim parties married in nikah ceremony before receiving civil divorce orders not spouses: court
Muhammad Alam is founder and managing barrister at Alam Law Firm.

An Ontario court has ruled that an Islamic marriage ceremony between two parties who had failed to civilly divorce their previous spouses before the wedding is not considered a valid marriage under provincial law giving rise to spousal rights.

In Iqbal v. Shah, 2021 ONSC 2407, the applicant, Mohammad Raza Iqbal, married Rabia Raza in February 2010, in a Muslim religious ceremony that was in accordance with the laws of Ontario. In November 2010, the respondent, Lubna Umbreen Shah, married Shezad Ahmed Din in Ontario. In September 2014, the applicant bought a property in Mississauga to serve as his and Raza’s matrimonial home.

In January 2018, the respondent obtained a talaq nama, a certificate for an Islamic divorce, from the Shariah Council of Britain. In January 2019, the applicant and Raza separated.

In April 2019, the applicant and the respondent were parties to a nikah, an Islamic marriage ceremony.

On June 3, 2019, the applicant and Raza obtained a divorce order under the Divorce Act. Later that month, on June 29, the applicant and the respondent separated when the applicant was arrested after allegedly assaulting the respondent. The next day, the applicant appeared before a Brampton court and was released on the condition that he would not return to the Mississauga property.

The respondent and her son continued to reside at the applicant’s Mississauga property, with the applicant living elsewhere while still paying the property’s costs and expenses. In July 2019, the applicant conveyed a notice to the respondent to vacate the property, pursuant to the Trespass to Property Act, but the respondent did not reply to the notice. In October 2019, the Ontario Superior Court of Justice granted a divorce order to the respondent and Din.

The applicant then initiated a civil proceeding under the Trespass to Property Act and asked the court to require the respondent to vacate the Mississauga property and to clean and restore it to its prior condition. He also alleged unjust enrichment, and asked to be reimbursed for expenses for the property and to be paid rent.

The respondent opposed on the basis that she and the applicant had legally married at the nikah, with the intention to comply with Ontario’s Marriage Act. As the applicant’s purported spouse, she invoked her right of possession to the matrimonial home under s. 19(1) of the Family Law Act.

The Ontario Superior Court of Justice ruled that the nikah ceremony in April 2019 did not amount to a valid marriage under Ontario law and that the parties never became spouses as defined by s. 1 of the Family Law Act. Thus, the respondent had no possessory right under the Family Law Act.

The court ordered the respondent to deliver possession of the property to the applicant, to clean and restore the property to its prior condition subject to reasonable wear and tear, and to compensate the applicant, on the basis of unjust enrichment, for the utility expenses. The claim for rent was dismissed.

The court found that, as of the day of the nikah in April 2019, both parties had a legal disqualification to marry because neither was civilly divorced from their respective spouses at that time. The applicant’s divorce from his wife was not finalized until June 3, while the respondent’s divorce from her husband was not granted in Canada until October.

The court found that the respondent had not even initiated Canadian divorce proceedings at the time of the nikah and had failed to prove as a fact the law with respect to the talaq nama obtained from the Shariah Council of Britain.

Muhammad Alam, founder and managing barrister at Alam Law Firm, acted as counsel for the applicant. While some Islamic scholars may claim that, in Islam, a man can marry more than one woman at a time and that a religious divorce is sufficient for a man to marry another woman, actions such as marrying multiple women are illegal in Canada under the Criminal Code, Alam told Canadian Lawyer.

Alam reminds family law lawyers in Canada who are dealing with similar disputes to ensure that the parties do not have any disqualification to marrying, such as marriages that have not been dissolved in civil law.  A religious marriage ceremony such as a nikah can be valid in Canada and can give rise to spousal rights, but the parties must also comply with both provincial and federal laws, and a religious divorce is not sufficient to dissolve a marriage for the purposes of legally remarrying.

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