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Did Traditional Dowry Gift from Groom’s Family Come with Conditions?

dowry

Did Traditional Dowry Gift from Groom’s Family Come with Conditions?

In the interesting recent case called Abdollahpour v. Banifatemi the Ontario Court of Appeal was asked to examine the interplay between Canadian family law on one hand, and traditional Iranian marriage traditions on the other.

The facts involved a young Iranian couple who were married in Ottawa in 2012. As was the custom in the Iranian culture and tradition, the groom’s family had provided the bride with a dowry (known as a “Mahr”) on the occasion of the wedding. In this case, the Mahr was comprised of a 50% interest in a home that the groom’s parents owned.

About a year after the wedding, the bride decided to move out and the couple formally separated. The groom’s parents asked for the 50% interest in the home back, arguing that it had been a conditional gift, with the condition being that the bride not leave the marriage.

On a motion for summary judgment, the bride succeeded in obtaining an order that she keep the 50% interest in the property, with the court finding that had been an irrevocable and unconditional gift from the groom’s parents.

When the groom and his parents appealed, they sought to introduce fresh evidence in the form of a translated copy of the marriage contract, which expressly listed the 50% interest in the home as being part of the Mahr. They also brought a report by a scholar who was an expert on the Islamic traditions, which confirmed that in certain circumstances the Mahr is to be returned by the wife in the event the marriage breaks down. The expert also gave an opinion as to what he thought the couples intended at the time of the transfer.

The Ontario Court of Appeal dismissed the appeal and confirmed that the bride could keep the 50% interest in the home. The Court drew a narrow but important distinction between what the expert could and could not give an opinion on, writing:

The issue is not whether Iranian culture or tradition features the characteristics explained by the expert, but whether the parties agreed to the transfer being subject to the conditions imposed by that culture or tradition. An expert cannot give an opinion as to what the parties’ intentions were – the very issue the motion judge had to decide – which is what the proposed expert purported to do here.

Also, applying the well-established legal test for what constitutes a “gift”, the Appeal Court also confirmed the motion court’s earlier ruling that the transfer of the 50% interest in the property was an irrevocable, unconditional gift. Based on the correspondence, negotiations and discussions between the various parties and their respective lawyers, it was clear that the interest in the home was intended to be a gift; it was also clear from the Deed of Gift itself, which had been prepared in order eliminate uncertainty. It made no mention of their being conditions attached.

The appeal was accordingly dismissed; the bride was entitled to keep the 50% interest in the home belonging to the groom’s family.

For the full text of the decision, see:

Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com