Mehrieh and Iranian Divorce
Mehrieh and Iranian Divorce
By: Elena E. Mazinani
Canada is a multi-cultural country and Canadian courts must sometimes recognize foreign legal and religious agreements.
The Iranian Islamic marriage contract known as a “Mehrieh” (also known as “Mehr” or “Mahr”) and the legal question of whether it is valid and enforceable in Canada has been dealt with in many family law cases in Ontario.
Whether the Mehrieh payment is enforced and the exact manner of its enforcement (whether it is separate from or part of the usual division of assets) is determined on a case-by-case basis in accordance with the terms of the Mehrieh and the surrounding circumstances. There are many cases in Ontario that have dealt with this issue.
Validity in Ontario
Formal Requirements
To be valid in Ontario, a Mehrieh Agreement must:
• be in writing, signed by both parties and witnessed; and
• cover issues that comply with the Family Law Act.
Typically, the terms of the Mehrieh are specified on the parties’ marriage certificate, in which case it is usually witnessed and signed.
Setting Aside a Mehrieh Agreement
A determination that a Mehrieh is valid under Islamic law is not indicative of the issue in Ontario. In other words, just because the Mehrieh is enforceable under Islamic law does not automatically mean that it is enforceable under Canadian law. Courts must still apply the general contract-validity principles to specific cases to determine whether the agreement is enforceable. There have been family law cases in which the Mehrieh was set aside or found to be non-enforceable.
Interplay with Equalization and Spousal Support
Equalization
The court has held that the Mehrieh could either be considered excluded property under s. 4(2)(6) of the Family Law Act, or it may form part of the division of assets for married spouses, also known as “equalization”. In other words, depending on the exact terms of the Mehrieh, the amount of the Mehrieh payment will either be considered an asset for the wife (meaning that the wife must equalize it with the husband) or the Mehrieh is to be paid separate and apart from equalization.
Spousal Support
Any amount payable under a Mahrieh is not considered a replacement for spousal support.
Conclusion
The Courts in Ontario have consistently determined that Mehrieh agreements are valid and enforceable as marriage contracts, provided they otherwise conform to basic formal validity requirements.
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