Religious Divorce and Mahr in a BC Separation

For many couples, marriage has two parts: a civil marriage recognised by law, and a religious marriage with its own requirements for ending it. When the relationship ends, both may need attention.

This article explains, in general terms, where Canadian and BC law connect with religious divorce and with a mahr promised in an Islamic marriage contract. Each family's documents and circumstances differ, so the outcome in a particular case depends on individual advice.

Civil divorce and religious divorce are separate

In BC, a civil divorce is granted by the Supreme Court under the federal Divorce Act. Our guide on how to get a divorce in BC explains the grounds and steps. A civil divorce order ends the legal marriage, but it does not change a person's status within their faith.

Religious divorce follows the rules of the faith community. In Jewish tradition, for example, a religious divorce generally involves a get given by the husband and accepted by the wife. In Islamic tradition, a marriage may be ended in different ways depending on who initiates it and the school of law followed, sometimes with the involvement of a religious authority. The civil courts do not decide those religious questions. They can, however, deal with legal consequences: what spouses agreed to, and what one spouse controls that affects the other.

Divorce Act section 21.1: barriers to religious remarriage

Parliament added a specific tool for situations where one spouse holds the key to the other's religious remarriage. In any proceeding under the Divorce Act, a spouse may serve and file an affidavit setting out, among other things (s 21.1(2)):

• the nature of the barriers to their remarriage within their religion that the other spouse can remove;
• that they have removed, or signified a willingness to remove, any barriers within their own control to the other spouse's remarriage; and
• that they asked the other spouse in writing to remove the barriers, the date of that request, and that the other spouse has not done so.

If the other spouse does not, within 15 days after the affidavit is filed or a longer period the court allows, file an affidavit showing the barriers have been removed and satisfy the court of that, the court may dismiss that spouse's applications under the Act and strike out their other pleadings and affidavits (s 21.1(3)). The court may decline to do so if the spouse shows genuine religious or conscientious grounds for refusing (s 21.1(4)).

Two limits matter. The section applies only within a Divorce Act proceeding, and it does not apply where the power to remove the barrier lies with a religious body or official rather than the other spouse (s 21.1(6)). In practice, it is most useful where a spouse's own act, such as giving a get, is what is needed.

Agreements can also help. In Bruker v Marcovitz, 2007 SCC 54, the Supreme Court of Canada held that a husband's undertaking, in an agreement settling the terms of the divorce, to obtain a get was a valid civil obligation that the courts could enforce, and upheld an award of damages for breach. The case came from Quebec and turned on its civil law, but it shows that a clear written promise in a separation agreement can have legal force.

What a mahr is, and whether it is enforceable in BC

A mahr (also written mehr or maher) is a payment or gift promised by the husband to the wife as part of an Islamic marriage (nikah), usually recorded in the written marriage contract. Part may be paid at the marriage and part deferred, sometimes until death or divorce. When a marriage ends in BC, the question is often whether a deferred mahr can be claimed through the civil courts.

There is no single answer. BC courts have, in at least one case, treated a religious marriage contract providing for a mahr as a marriage agreement: in Amlani v Hirani, 2000 BCSC 1653, decided under the former Family Relations Act, the court found a marriage agreement and admitted evidence of an oral term about when the mahr was payable. It is one decision under an earlier statute, and each case turns on its own documents and evidence.

Under today's Family Law Act, spouses may make agreements about dividing property and debt (s 92), and a written agreement signed by each spouse with a witness can be set aside only if, for example, a spouse failed to disclose significant property, took improper advantage of the other's vulnerability, or did not understand the agreement, or if it is significantly unfair given the factors the Act lists (s 93). A court may also apply that section to an unwitnessed written agreement where appropriate (s 93(6)). How these rules apply to a particular mahr depends on questions such as:

• what the contract actually says, and whether a reliable translation is available;
• where and how it was signed, and whether it was witnessed;
• whether the amount was prompt or deferred, and when it was to be paid;
• what each spouse understood at the time, and whether later agreements changed it; and
• how a mahr claim fits with the division of family property and any spousal support claim.

Similar questions can arise with other religious marriage contracts, such as a ketubah. Our article on what a marriage agreement can and cannot do explains how BC treats agreements made before or during marriage.

Practical steps

• Gather the documents. Find the original religious marriage contract, any civil marriage certificate and certified translations. If you married outside Canada, our article on divorce in BC after marrying abroad may help.
• Put religious steps in writing. If both spouses agree to complete a religious divorce, the separation agreement can record who will do what, and by when.
• Raise barriers early. If your spouse controls a barrier to your remarriage, tell your lawyer before the divorce application is filed so the section 21.1 process can be considered.
• Get advice on timing. For married spouses, a Family Law Act claim to divide property or for spousal support must generally be started within two years after the divorce order (s 198(2)), so do not wait for the religious process to finish before getting legal advice.

Dealing with a religious marriage contract? Get advice on your documents

Our family lawyers can review your marriage contract and translation, explain how it may be treated alongside property division and support, and prepare a separation agreement or divorce application that addresses religious divorce steps.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.