Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?
Under the law governing Islamic marriage, a “Maher” (sometimes written as “Mahr”) is a written marriage contract. In the recent Ontario Court of Appeal decision in Bakhshi v. Hosseinzadeh, the narrow legal question was whether, under the Ontario Family Law regime, the property transferred under a Maher is excluded from the definition of Net Family Property (NFP), and by extension excluded from the equalization calculation of the parties’ respective NFPs upon divorce.
When they married in Iran in 1995, the couple had entered into the Maher in keeping with their religious and cultural beliefs. The Maher contained a clause that required the husband to pay the wife 230 gold coins promptly upon her request. The spouses later immigrated to Canada.
When in 2013 the wife began divorce proceedings and various related court applications, the issue arose as to how the notional transfer from the husband of those 230 gold coins under the Maher was to be treated in law. At the initial trial, the judge concluded that the Maher obligation was valid and that the value of the gold coins – about $80,000 – was to be excluded from the wife’s NFP total.
The Court of Appeal was asked to entertain the husband’s appeal. It began by confirming the ruling of prior courts to the effect that despite being religion-based, marriage contracts such as a Maher can be enforceable, provided they satisfy the elements of a valid domestic contract under Canadian law. Once deemed valid, they are interpreted like any other civil contract, by looking at their wording and the objective intentions of the parties at the time the agreement is made.
Next, the Court observed that definition of NFP found in the provincial Family Law Act includes all property owned by a spouse on the valuation date. The Maher in this case contained no express agreement that the payment of 230 gold coins was to be excluded from the wife’s NFP, nor was there any basis to infer that the spouses intended at the time to exclude it. To the contrary, it was executed in Iran and contained other terms that suggested the couple envisioned continued life in that country, and were not contemplating their potential mutual obligations under the Ontario legislation.
The Appeal Court concluded that the Maher payment was to be treated under the Family Law Act like any other payment obligation between the spouses, meaning that it was to be included in the overall calculations. That outcome was in keeping with the rest of the legislative regime, which envisions that spouses own property separately during marriage, and does not allow for transactions between spouses to be excluded from NFP calculations.
The Court re-calculated the NFP by including the value of the Maher payment, while clarifying that the husband still needed to actually (i.e. physically) transfer the 230 gold coins to the wife’s possession. Even though its value was to be included in the overall equalization calculation, the Maher payment itself was considered a demand obligation with a paper value, which meant the wife was entitled to pursue debt collection remedies if the husband refused to pay.
For the full text of the decision, see:
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