ICYMI: What to do with the gold? Divorce cases with Islamic marriage contracts pose challenge for courts

Interesting. Appears the courts are handling the cases appropriately:

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.”

Yousefi was involved in a recent case in which a couple of Iranian heritage married in Canada in a civil ceremony and another ceremony under Sharia law. According to the Islamic marriage certificate, the husband agreed to give his wife “five gold bullions of 24 karats equal to 5 kilogram (sic) of 24 karats gold.”

Upon their separation, however, they could not agree on the valuation of the gold; she demanded $270,000, while he would not go higher than $45,100. The judge told both parties they would need to present expert evidence before he could decide the matter.

Yousefi said the wife ultimately decided not to bother going through the hassle because she was satisfied with the outcome of the rest of the case, which included getting proceeds from the sale of their home.

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.”

Source: What to do with the gold? Divorce cases with Islamic marriage contracts pose challenge for courts