Court Cases & Orders

Can a Religious Marriage Trigger Spousal Rights Under the Family Law Act? 

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Court considers whether the parties were “spouses” as defined under the Family Law Act

In an interesting recent case, the Ontario court introduced the specific focus of its decision this way:

This case revisits the intersection between a religious marriage and the legal requirements that confer the status and corresponding rights of a spouse on parties under the Family Law Act, R.S.O. 1990, c. F.3.

In Iqbal v. Shah, the couple had undergone an Islamic religious marriage ceremony known as a nikah in early April 2019.  They separated only a few months later in June.  They did not obtain a marriage license at the time, and signed no Islamic marriage contract or other agreement.  The man also did not give a maher to the woman (which is a gift traditionally given by the groom to the bride on marriage).  Each of them had been married previously, but at the time of the nikah the man’s divorce from his first wife was not yet finalized.

After separation, the woman and her 7-year-old son continued to live in the property owned by the man. He began a civil action for trespass, and asked for a court order requiring the woman to vacate, to clean and restore the property, and to reimburse him for expenses he paid to carry the property while he was forced to live elsewhere.

The woman resisted, claiming that the nikah served to achieve a legal marriage between her and the man, and this in turn made her his “spouse” under the Ontario Family Law Act.   As such, she had the right of possession to his property under that legislation, since it was their matrimonial home and subject to special entitlements.

The court accordingly had to consider whether the parties were “spouses” as defined under the Family Law Act, and whether the nikah ceremony resulted in a valid marriage under Ontario law.  The court explained the framework for its ruling:

As Ontario is home to a vibrant, multi-cultural population, the issue of what is required to meet the requirements of the Marriage Act, and how that issue correlates to rights under the Family Law Act, has arisen from time to time.

To inform the analysis, the court received expert evidence on how an Islamic marriage is received under Ontario law, and (since both parties had been previously married) also heard evidence on how a divorce is obtained under both Sharia law and the laws of Canada.

“Although the Marriage Act did provide a limited technical exemption around getting a marriage license in narrow circumstances, it did not apply to this case since the parties were ineligible to marry in the first place” – Nafisa Nazarali, Managing Associate Lawyer

The court began by noting that under the provincial Marriage Act, no marriage may be solemnized except under the authority of an issued license.  There are also additional requirements around solemnization, intention to comply, good faith, capacity, and cohabitation.

But after looking at these requirements against the facts – including the man’s ineligibility to marry due to his non-divorced status under Canadian law – the court concluded that no legal marriage was possible in any event.  As the court put it:

… The nikah also provided the benefit of conferring on the couple a religious marriage to conform with the laws of Islam, or to use the words of [the] Imam …  for keeping God in mind. While the nikah may have fulfilled that purpose, however, the parties were not available to legally marry in the eyes of the law.

Although the Marriage Act did provide a limited technical exemption around getting a marriage license in narrow circumstances, it did not apply to this case since the parties were ineligible to marry in the first place.

With these conclusions in mind, and since the term “marriage” under that Act essentially provides the context for the definition of the term “spouse” in the Family Law Act, in this scenario the couple could not qualify as spouses for the purposes of that legislation.  Without that recognized spousal status, the woman had no rights under the Family Law Act to possess the home she and the man had lived in during their brief marriage.

For the full text of the decision, see:

Iqbal v. Shah, 2021 ONSC 2407

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.