Court Cases & Orders

Court Orders Husband to Divorce Wife

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Court Orders Husband to Divorce Wife

In a recent B.C. decision, the court grappled with whether it had the legal authority to: 1) order a man to take positive steps to divorce his wife; and 2) uphold a Canadian-court-granted divorce in Iran, in circumstances where the Iranian courts themselves had refused to do so.

The couple had been married in Iran in 1994, where they entered into a traditional marriage contract. They moved to Canada where they separated in 2012.  Both parties embarked on litigation in Canada to pursue certain divorce- and child support/custody-related rights, and were formally divorced in 2015.

However, the husband refused to participate in allowing the wife to divorce under Iranian law.  Under that country’s legal system, and in the Islamic tradition, only the husband has the right to divorce in most cases. Indeed, the husband was resolute in preventing a divorce from the wife, texting her taunting comments in which he invited her to “dream on,” and stated, “I will not let it happen even if you mobilize the whole world”.

The wife was thus compelled to ask the Canadian court for an order forcing the husband to complete certain forms so that an Islamic Iranian divorce could be registered with the Iranian government.  She also asked for a ratification of the Canadian divorce, to ensure that it was recognized under Iranian law.

This would not only allow her to remarry if she desired, but it would also allow her to travel to and from Iran where here elderly, infirm mother and disabled sister still live.   Prior trips to visit them there had occurred only because the husband had given his consent, in keeping with the Islamic tradition.   The wife was also in jeopardy of being detained in Iran against her will if she travelled there since her husband could prevent her from leaving the country.

After several appearances and appeals, the court finally granted her request.  It found that it did indeed have the authority to order the husband to take certain affirmative steps to obtain an Iranian divorce.

While noting that the husband had certain religious rights, his lack of cooperation resulted in direct, substantial harm to the wife, in a situation where he did not even appear at the court hearing, despite being served through several different methods. (And the court used its discretion, and found it appropriate in all the circumstances to proceed without him).

The court concluded:

I find that it is against Canadian public policy to recognize that the right to the parties’ Islamic Iranian divorce is exclusively the claimant’s, as a man. As discussed, such a finding would effectively restrict the [wife] from visiting her aging mother and disabled sister in Iran. This is unwarranted in light of Canadian views and jurisprudence on the equality of sexes, and the harm to the [wife] is an injustice that offends Canadian morality.

The parties are divorced by order of this Court, and there is no basis for the [husband’s] failure to grant the Islamic Iranian divorce.

The court ordered the husband to execute the needed documents within 14 days, to send them to the relevant Embassy, and to provide a copy to the wife within 7 days of executing them.

For the full text of the decision, see:

Kariminia v Nasser

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.