OCA rules on Islamic marriage contract

November 21, 2017
Article Source
Law Times

The Court of Appeal has determined that part of an Islamic marriage contract was part of net family property under the Ontario Family Law Act.

The appeal in Bakhshi v. Hosseinzadeh concerned whether property conveyed under an Islamic marriage contract — or Maher — should be excluded from net family property, which is the monetary value of parties’ net worth that is equalized between spouses when they separate.

Meysa Maleki, a lawyer with Niman Gelgoot and Associates LLP, who was not involved in the case, says the decision is significant because it elevates the status of a religious or cultural obligation to one that is capable of recognition under the Family Law Act as an asset that can be included in the calculation of net family property. 

She says the decision also clarifies the legal test around the issue.

"Where the Court of Appeal departs from the trial judge and, I think, prior decisions is that they say there is a second step," says Maleki. "That second step requires you to take a look at the factual matrix of the case and take a look at the contract itself."

The couple in the case entered into a Maher when they got married in Iran in 1995 and immigrated to Canada soon after. The Maher included a clause requiring the husband to pay his wife 230 gold coins, which the court valued at $79,580,  when she requested them.

When the wife filed for divorce in 2013, she brought an application seeking equalization of net family property along with a number of other remedies. 

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