“[BC] law continues to evolve in a manner which acknowledges cultural diversity. Attempts are made to be respectful of traditions which define various groups who live in a multi-cultural community.”
Kariminia v Nasser, 2018 BCSC 695 (“Kariminia”) at para. 24.
Marriage Agreements in BC
Under the laws in British Columbia, two people are “spouses” if they marry each other or live with each other in a “marriage-like” relationship for two years or more (or, for the purposes of spousal support, if they have a child together, even if they have lived together for less than two years).
With a few exceptions, this will represent the majority of marriages in British Columbia (“BC”) including an Islamic marriage.
In BC there is no requirement to provide security or any exchange of promises prior to the marriage, however some people do choose to make a marriage agreement. These are more commonly known as prenuptial agreements. A prenuptial agreement covers financial matters but excludes any future child custody or support arrangements.
For the fulfillment of an Islamic marriage, Mahr is a prerequisite. In Islam, a man is obligated to provide a Mahr. Mahr is usually a stipulated amount of money or gifts given to the bride by the groom at the time of the marriage contract, the Nikkah. Mahr is usually money, but can be jewelry, furniture, a dwelling or land. Mahr is typically specified in the marriage contract signed upon marriage. Some Islamic scholars have indicated a minimum amount of Mahr should correspond to the value of 31 grams of silver. There is no maximum amount of Mahr. Also, it is encouraged that a reasonable figure be set according to the earnings and financial status of the bridegroom.
The purpose of Mahr in Islam is multifaceted. It signifies the solemnity of the marriage contract. It gives honor to the bride and, as a first act in marriage, sets the foundation for a harmonious relationship between the couple based on giving and respect. It is also given to ensure a woman’s right to self-sustenance. Historically, many women were often reliant on men for their financial security as they were not remunerated for their contributions or work in society. This left many women with no recourse or financial security if their husband decided to stop supporting them.
Enforceability of Religious Marriage Agreements in BC
Not all Mahr contracts are legally enforceable contracts in BC. For example, you cannot enforce an agreement prior to marriage concerning the custody of children.
While many people may have already agreed to a Mahr that includes unenforceable promises, some promises such as spousal support or lump sum support may be enforceable under current BC laws.
The manner in which the courts in BC treat marriage agreements involving Mahr depends on whether a contract was entered into before or after the coming into force of the Family Law Act (“FLA”) on March 18, 2013.
For marriage agreements entered into before the FLA, the preceding Family Relations Act (“FRA”) takes effect. As outlined at para. 26 of Kariminia, BC courts have found that “contracts for Mahr are enforceable where the evidence established that they met the definition of ‘marriage agreement’ in the applicable family law legislation.” For contracts signed before March 18, 2013, the definition of ‘marriage agreement’ is set out in section 61(2) of the FRA. In addition to meeting the definition, marriage contracts are also subject to re-apportionment by the court on the basis of fairness under section 65 of the FRA, as set out at para. 25 of Stav v. Stav, 2014 BCSC 188.
As for marriage agreements entered into after the coming into force of the FLA, the law in BC is still developing. That said, such contracts appear to be governed by Division 4 of Part 5 of the FLA – Dividing Family Property and Family Debt. In particular, section 92 sets out that spouses may make agreements respecting property division, while section 93 sets outs that the Court may set aside such agreements in certain circumstances, including when an agreement is significantly unfair.
BC courts interpret marriage agreements as akin to a ‘contract’ but a religious one. They strive to ensure that they are flexible to the culture and traditions of the parties, but the Mahr, as a contractual document, must meet the requirements of a ‘marriage agreement’ under BC law and be fair, to be valid. If it meets those requirements, then the Court is likely to uphold the document as legally binding (assuming it does not violate the existing applicable laws).
This is a developing area of the law in BC and the information contained in this blog can change in the future. Please consult Mina Khan if you have any questions.