We have discussed the topic of divorce in a previous blog post, however at Devry Smith Frank LLP, we are aware that typically, traditions vary in different cultures. In particular, the South Asian community.
Family separation and divorce within the South Asian community is often seen as a taboo subject and notions of uncertainty as to whether a Mahr Agreement can actually be enforced, frequently arises. – Either promptly, at the time of the marriage or on a deferred basis, which allows for the wife to gain financial security in the event of unforeseen circumstances, such as the death of her husband or a separation. Occasionally, it is misperceived as a 'bride price' or 'dowry' which does not seem fitting, considering the agreement is not a prerequisite for marriage. Typically, it is a gift given to the bride from her husband when the stipulations of the contract of marriage is made.
Over the years, there has been inconsistency in the rulings of Mahr agreements in Canadian courts. Nonetheless, some courts have deemed the contract to be one of a domestic nature and enforced it under the provisions of family law. As seen in Mohammadi v. Safari , a case in which Farzana acted as Counsel on behalf of the Applicant and whereby the ambiguity depicted within the Maher Agreement, led to what one would believe to be a partial enforcement. – Despite the Respondent's opposing claim that the Mahr Agreement in which he initially agreed to, should be considered invalid.
That said, the standards to which could make a Mahr agreement enforceable is very much akin to those of any other domestic contract. To be valid in Ontario, a Mahr must:
- Be in writing, signed by the involved parties and witnessed.
- Financial disclosure must be provided by the parties to one another
- Must be signed without duress
Whilst the enforceability still depends on the specific facts of each case, it is imperative that you seek independent legal guidance.
Talk to one of our South Asian lawyers today in our Toronto office location. Farzana Jiwani has extensive experience litigating Maher Agreements and is well acquainted with Shariah Law. – Which provides for the best possible results for families and their complex legal matters.
Farzana also welcomes Gujarati and Kutchi speaking clients.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
