
For many Iranian-Canadians, separation and the breakdown of a marriage comes with an added element of uncertainty – the “Mehrieh”
How their Iranian marriage contract, and the included contribution from husband to wife (the “Mehrieh”) is treated in British Columbia can depend on multiple factors.
Entering into an Iranian marriage often includes a religious marriage contract, and within that contract is the promise of a Mehrieh. Often, the Mehrieh is promised in the form of gold coins, flowers, and/or a mirror and candelabras, as it is a symbol of the husband’s commitment to his future wife. Typically, the Mehrieh is payable upon the breakdown of the marriage. Where the issue arises however, is that more often than not, the husband does not actually have the gold coins or the equivalent value of the gold coins promised to his spouse.
What is Mehrieh?
The Mehrieh, interchangeably referred to as “maher”, “mahr”, “mahrieh” or “mehr”, is an obligation of wealth, often in the form of gold coins, made by the groom to the bride in connection with an Islamic wedding. In other words, the Mehrieh is a contribution that a husband promises to make to a wife at the time that they are getting married within a marriage contract. Often, the Mehrieh is payable upon demand by the wife, but typically the Mehrieh is demanded around the time of separation between the spouses.
The term that translates most closely to the Mehrieh in English, is that of a “dower” – which refers to the payment from the husband or his family to his wife. The Mehrieh, however, is different from the dower, or “dowry”, in a couple of ways: 1) while the dowry is optional, the Mehrieh is a legal obligation for Islamic marriages to occur, and 2) the amount of the Mehrieh has to be promised at the time of the marriage. Essentially, the Mehrieh is a sort of reverse dowry, where it is paid out to the wife by the husband on the event of separation.
Disputes often arise when one party takes the position that the Mehrieh is binding, and the other that it was nothing more than a symbolic sum that was never intended to be paid, but rather intended to demonstrate a husband’s commitment to his future wife. The symbolic nature of the Mehrieh means that the sums of promised gold coins are often, well – symbolic, but the promise that is made is, well – not so symbolic and actually a contractual obligation. That contract is nowadays, considered just like any other contract to determine what the objective intentions of the parties were in light of the specific facts of the circumstances.
Is the Mehrieh enforceable in British Columbia?
The Supreme Court of Canada, has specified that just because a dispute has a religious aspect to it, it does not make it non-justiciable. Therefore, promises such as the Mehrieh must be considered to determine whether they are valid and binding under the relevant law. In British Columbia, that relevant law is the Family Law Act (“FLA”).
Much like other provinces, the courts in British Columbia have tried to be flexible in accommodating the traditions of other countries and cultures where it is feasible to do so. Therefore, a spouse can make a claim to enforce her Mehrieh against her spouse. Where the uncertainty enters however, is the question of whether the wife is then entitled to her Mehrieh in addition to her 50% of the family assets and spousal support under the FLA. The answer then as to whether the Mehrieh is actually enforced in British Columbia is – well, it depends. And it depends for a reason, mainly because in British Columbia, unlike in Iran, the spouse requesting the Mehrieh is entitled to other mechanisms of support under the FLA, whereas in Iran, the Mehrieh can be the only financial assistance that the wife can receive after separation. Because of this, the courts look at a number of factors when determining whether or not the Mehrieh should be enforced.
Factors determining if a spouse is entitled to the Mehrieh include but are not limited to:
- The amount of the Mehrieh – as discussed, since the amount that is promised is often symbolic, if the amount is severely disproportionate to the family assets, then it would be unreasonable to consider enforcing it and leaving one party with limited financial means. For example, if the Mehrieh promised is almost double the net-worth of the spouse promising the wealth at the time the contract is entered into, it is unlikely the intention was truly to pay that sum.
- The place of the promise – the court will consider where the marriage contract was signed. If it was signed in Canada, versus in Iran, then the courts are more likely to presume that there was an intention between the parties that the Mehrieh be enforceable in Canada, and vice versa. The reason being that it is often not the intention of the parties to pay the Mehrieh as well as sums payable under the FLA, if they were not aware of the FLA or their obligations under Canadian laws at the time of entering into the contract.
- The evidence surrounding the contract – the court will often look to and analyze the circumstances surrounding the signing of the contract, and the evidence must support the conclusion that the Mehrieh was an amount truly agreed upon by both parties to be paid upon separation, rather than solely a symbolic figure that was set out. For example, if the court determines that the marriage contract was solely for the purposes of satisfying the other spouse’s family members, it is unlikely that the Mehrieh will be awarded.
Ultimately, the evidence must, in each specific case, support the court’s conclusion that the Mehrieh was an amount truly agreed upon by both parties to be paid to the wife upon separation rather than simply a symbolic figure. This assessment is strongly fact-based, and requires more nuance than the brief explanation above.
If you have any questions about the effects of your Iranian marriage contract on your separation in Canada, or are considering separation and have an Iranian marriage contract in place, contact one of our Farsi speaking family lawyers today.