Isse v Said: Marriage under Sharia Law – Is it valid in Ontario?
This is an important case for the Islamic community in Ontario as it deals with the question of whether or not parties married under Sharia law have a valid marriage.
In 2002, in Ontario, the parties were married in an Islamic religious ceremony, but they did not obtain a provincial marriage license. They lived together as a couple until they separated, in 2010. The husband then applied for relief including equalization of property and reimbursement of support.
The judge at the Case Conference granted leave to the parties to amend their pleadings to deal with the issue of whether the parties are “spouses” for the purpose of the equalization of property.
At the Settlement Conference the judge ordered that the husband bring a Motion to determine whether the Sharia marriage is valid for the purposes of divorce and property considerations. Interestingly, the Husband moved for a declaration that his marriage was invalid and that an equalization claim is not applicable.
Although there was a factual dispute as to the details of the marriage ceremony, the parties agreed that they did have an Islamic wedding ceremony in accordance with Sharia law, without a marriage license having been issued, and that the marriage was not registered under the law of Ontario.
Pursuant to the Family Law Act (FLA) persons must be spouses to claim an equalization of net family property. Spouse is defined at section 1(1) of the FLA stating:
“spouse” means either of two persons who,
(a) Are married to each other, or
(b) Have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)
Section 4 of the Marriage Act provides that “no marriage can be solemnized except under the authority of a license issued in accordance with this Act or the publication of bans”. However, there is a saving provision at Section 31 of the Marriage Act to deal with non-compliance or imperfect compliance with section 4, which states:
If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.
As stated by Judge in the case at hand, there are four necessary elements for the deeming provision in paragraph 31 to apply, namely:
- The marriage must have been solemnized in good faith;
- The marriage must have been intended to be in compliance with the Marriage Act;
- Neither party was under a legal disqualification to contract marriage; and
- The parties must have lived together and cohabited as a married couple after solemnization.
The question in the present case is whether the four elements have been satisfied. If they have been, then the marriage is deemed to be in compliance with the Marriage Act, and the parties were “married” for the purpose of s. 1(1)(a) of the FLA. Here, the effect of the wife’s undisputed evidence is that there was an intention that the marriage be in compliance with “the law in effect in the Province respecting the solemnization of marriages”.
The Judge, therefore, found that the marriage was deemed to be a valid marriage pursuant to section 31 of the Marriage Act and that therefore the parties are “spouses” for the purposes of the equalization of net family property pursuant to the FLA.