Canada: Divorce cases with Islamic (sharia) marriage contracts pose challenge for courts

Sharia law is posing a challenge to Canadian judges? Source: What to do with the gold? Divorce cases with Islamic marriage contracts pose challenge for courts | Vancouver Sun  h/t TROP

At first blush, the recent Ontario Superior Court case of Akkawi v Habli looked like any other run-of-the-mill divorce case — a judge resolving issues of child and spousal support and division of family property.

But one matter took a bit of extra time to untangle: what to do about the gold?

When they married in Lebanon in 1996, Nada Habli and Sean Akkawi entered into a traditional Islamic marriage contract, known as a maher. Under such an agreement, the husband agrees to pay the wife money or other gifts in the event their marriage breaks down. In this particular case, the written agreement obligated Akkawi to pay Habli one kilogram of gold.

In a decision last month, the judge determined the contract was valid and enforceable, meaning Akkawi was required to cough up an additional $56,498.62 — the value of the gold on the date of the couple’s separation in 2012.

But such decisions are not always cut and dried. Family lawyers say courts across the country have varied greatly on the question of whether such religious-based contracts can be enforced in the context of provincial family laws. Disputes can sometimes involve extravagant claims, involving large parcels of land or hundreds of gold coins.

The numbers are astronomical these days,” said Zahra Jenab, a B.C. family lawyer. “I still scratch my head every time I see it.”

Jenab cited an example of how things can get messy: A couple marries in Iran and prior to marriage they work out an agreement wherein the wife will get a parcel of land as her maher. Let’s say the couple later moves to Vancouver and, instead of the parcel of land in Iran, they agree to add her name to the title of their new home. “Does she now get that half as her maher, plus half of his half, as required under B.C. family law,” Jenab asked.

“Alternatively, can the wife claim one half of family property in B.C. under the Family Law Act, and then demand that the husband pay her the maher out of his half, keeping in mind that the value of the maher can sometimes be significantly more than one half of the family property?”

In a recent column on the website of The Canadian Legal Information Institute, Leena Yousefi, another B.C. family lawyer, wrote that the “interplay between an Islamic marriage contract and Canadian family law is not well understood by our courts,” and that the application of both can lead to “unjustified and unfair outcomes” for the husband.

“Many of these immigrants were married in their home countries and followed marriage traditions and laws which make very little sense to our courts and our British Columbia family law. At the same time, our courts are often asked to deal with these concepts and apply them to Canadian divorces with very little guidance.”

Things can get really contentious, lawyers say, when the husband argues that there was never any expectation between families that the promises contained in the maher would actually be enforced, and that the exorbitant amounts were meant as symbolic “good faith” gestures.

In the recent Ontario case, the husband tried to argue that the maher was not enforceable in Canada. But Ontario Superior Court Judge Mark Shelston, citing a recent Ontario Court of Appeal case, said as long as the religious agreement met the basic elements of a valid civil contract, it could be enforced.

But then came another question: Whether the husband’s obligation to pay the equivalent of one kilogram of gold should be done on top of his other obligations under Canadian family law (such as spousal support and division of assets) or whether it should be rolled in to those other obligations. Again, Shelston followed the guidance of the appeal court.

Typically, Canadian divorce cases involve a division of property after both parties have calculated their total assets and liabilities. The wealthier spouse ends up paying the other spouse half the difference known as an equalization payment.

The Ontario Court of Appeal determined that where a religious contract exists, the amount owed by the husband should be factored in to the calculation of the equalization payment, unless there is specific language in the maher saying otherwise. This has the effect of lessening the burden on the husband by reducing the amount of the equalization payment. (Akkawi was eventually ordered to pay an equalization payment of $110,666.79).

While Ontario’s courts appear to be getting some clarity on how to enforce mahers, the fuzzy case law elsewhere in the country has led some lawyers to recommend their clients chase after maher obligations in their home countries where the chance of success is more likely.

In a 2016 B.C. Supreme Court case, a couple’s Iranian marriage certificate held that the husband was to give his wife a “volume of Holy Koran, a pane of mirror, a pair of candleholders … plus 700 Azadi Gold Coins,” valued at $276,000. The judge decided not to enforce the maher because it would not have been fair to the husband to be ordered to pay such a “substantial amount” given his “limited financial resources.”

Despite the myriad outcomes among judges weighing the enforcement of mahers, one thing is becoming clear, said Sofia Dharamshi, an Ontario family lawyer: “In the future, I think we will see more detailed Islamic marriage contracts being prepared, but that doesn’t mean that young couples shouldn’t still carefully read what they are signing,” she said. “These papers are not just declarations of love — they are potentially legally binding contracts, and that needs to be remembered.”

More Muslims, more sharia. Women beware.

2 thoughts on “Canada: Divorce cases with Islamic (sharia) marriage contracts pose challenge for courts

  1. You are responsible for protecting your loved ones from followers of the ideology that explicitly commands the slaughter of non-Muslims.
    If you are a Muslim, then you have made a conscious decision to align with Islam, and surely you have read the Quran and what it requires of you concerning me and my family. I would be extremely foolish to neglect the safety of my family while in the presence of any Muslim. Extreme caution is required in the presence of anyone who agrees with the Quran and the verses found therein. They hide their faces so they can’t be identified.
    The Quran, repeatedly invokes racism, slavery, violence, and oppression as the common beleifs of its faith. By exposing what the Quran demands of its followers is not the cause of any Muslim’s radical behavior. A devout Muslim by beheading or raping an infidel today is just like their prophet was over 1,400 years ago. Their religion demands this of them. Exposing what the Curan demands of its followers is not Islamaphobic, its merely exposing the TRUTH.
    In fact, none of the more than 270 million non-Muslims slaughtered by Muslims since Islam’s founding are responsible for the bloodshed commanded by the Quran. Still, liberals continue to victim-blame instead of pointing the finger at the murderous jihadists and their barbaric texts.

    There is no such thing as a radicalized Muslim. Islam by nature is Radical, has been, is now and always will be. Anyone who follows or submits to this death cult is a RADICAL. This has been, is now and will always be the religion of the Devil. When a Muslim dies they go to HELL and will abide in his Satanic Majesty’s kingdom for all eternity. Their god encourages, approves of and demands his followers rape, torture and behead, defenseless men, women and children for his pleasure. Anyone (all inclusive, you) who does not submit to this DEATH CULT is subject to immediate execution by the most heinous means these devils can devise.

    If you have any doubts concerning what Muslims are capable of doing to you, your spouse and children open the below link.

    CAUTION, MUSLIMS SERVING THEIR god /11/30/dear-president-trump-ho w-about-retweeting-these-incon trovertible-photos-of-muslim-e vil-that-the-media-cant-call-f ake-news/

  2. If married by sharia law in the nation they came from than by all means send them back to that nation for the divorce, do not change a nations laws to appease Islam.

If sharia law continues spreading, you'll have less and less freedom of speech - so speak while you can!

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