VALIDITY AND ENFORCEMENT OF MEHAR IN ONTARIO

What is Mehar?

Mehar is a promise in the Muslim marriage contract that requires the husband to pay a certain amount of money to the wife on the breakdown of marriage. While Mehar is usually money, it can also be in the form of jewelry, furniture, land or other items. Mehar may be prompt, which means it is paid at the time of marriage, or it may be deferred, which means it is paid at the end of the marriage.

In simple words Mehar is a promise made at the time of marriage that is to be fulfilled at a later date when certain circumstances arise. The purpose of Mehar is to give some financial security to the wife when she can no longer rely on her husband to support her.

What is the significance of Mehar?

It is a fundamental part of the Islamic marriage contract and is considered an obligation for the husband to fulfill. The importance of Mehar lies in its symbol of respect towards the woman and it is seen as a sign of the husband’s willingness and ability to support his wife. Mehar also gives financial independence to a woman in the event of death of her husband or separation.

How does Mehar fit into the family court system in Ontario?

There was an uneven response regarding the enforcement of Mehar. Some courts interpreted it as a domestic contract that is enforceable, while others regarded it as a religious practice and did not enforce it.

In a 2009 case Khanis v Noormohamed , the court found Mehar to be a valid marriage contract. This decision was upheld by the Ontario Court of Appeal, which found that the terms of the Mehar were valid and binding under the Family Law Act and that payment of the Mehar was in addition to the wife’s right to an equalization payment.

In Bari v Nassr, 2015, The husband argued that the wife could not claim both the Mehar and spousal support. The court looked for “an approach that reaches an appropriate balance,” and took the Mehar into account in awarding mid-range spousal support.

In contrast, in Yar v. Yar 2015 ONSC 151 (CanLII), the Mehar was set aside primarily on the basis that it was written in Arabic, despite the fact that neither party was able to speak, read or write in that language. The document was also prepared without either party’s involvement, there was no negotiation, and there was no opportunity for either of them to obtain independent legal advice. The court found there was also demonstrated confusion at the time by the intended husband, in connection with the currency in which the Mahr was to be paid. In short, in deeming the Mahr to be unenforceable, the court concluded it was not satisfied that the parties to the agreement “were of a like mind, knew what they were agreeing to, and were agreeing to be bound by the terms of the contract”.

Is Mehar promised in another country, enforceable in Ontario?

Even though Mehar is promised in another country, it might be enforceable in Ontario, provided it fulfills the conditions of a valid and binding contract. In the case of Akkawi v Habli, the judge found the Mehar to be a valid contract, which was enforceable in Ontario. In making this finding, he noted: “the agreement was in writing, signed by both parties, witnessed and entailed clear obligations. I find that both parties believed the contract to be binding and at no time did either party testify that they did not understand the terms of the agreement or that they misunderstood when the obligation crystallized. Both parties testified that they relied on the marriage contract as it was a pre-condition before entering into their marriage

Conclusion

Thus, women are entitled to Mehar under Family Law Act in Ontario. Mehar has been upheld as a valid and binding contract. This does not affect the other rights available under the provincial laws such as equalization of property, support rights etc. Though, if the value of Mehar is substantial, the court might take it into consideration while determining the amount of spousal support.