Khanis v. Noormohamed: Marriage Contracts

This case dealt with the division of property on martial breakdown. When couples separate there is no tangible division of the property, but there is a calculation used to determine the net asset value of each person during the marriage. A financial snapshot is taken of the value of the assets owned by each spouse on the date of marriage and on the date of separation. The wealthier spouse pays half of the difference of the higher net asset value. This calculation is used so that each spouse ends up with assets of equal value for the duration of their marriage. Hence, the calculation is known as an equalization payment.

In this case, the husband and wife were married for ten years. There were no children of the marriage and both parties were 58 years old. The legal issues included deciding which assets were eligible for a deduction and determining the true value of their marital assets (i.e.: their business, jewellery, and various real properties) as both parties had different values for the same property. This issue came down to whose testimony was most credible, and based on the husband’s inconsistent statements, the Court found the wife’s testimony regarding the values for marital property more convincing.

Within the case, the Ontario Superior Court of Justice was also faced with the issue of whether the Court is willing to enforce a traditional marriage contract under Muslim law, known as maher. Basically, this entitles the wife to a sum of money [$20,000.00 in this case] that is given to her upon marital breakdown as agreed by contract. Contracts for maher are seen as being intrinsic to Muslim law as the money given to the woman is part of the husband’s moral obligation. It is important to note that the maher is an agreement paid to the spouse in addition to and without prejudice to the husband’s obligations under the Ontario Family Law Act. Both parties did not obtain independent legal advice and neither party provided financial disclosure. At the culmination of the martial ceremony, neither spouse retained a copy of the marriage contract. However, given that setting aside a marriage contract is a discretionary power of the Court, the Court in this case found that given the nature of the terms were simple and the husband understood his obligation, the Court upheld the marriage contract.

The Supreme Court of Canada Marcovitz v. Bruker decision has held that although the dispute has a religious facet, it does not make it non-justiciable. This means that individuals can transfer their moral obligations into legally binding ones. Accordingly, the Court decided to uphold the traditional marriage contract based on the grounds that the marriage contract was binding under the Family Law Act. The Act allows parties to enter into a marriage contract in which both parties agree upon their respective rights and obligations upon separation. The marriage contract may cover ownership and division of property, spousal support obligations and various matters of settlement. However, there is a prohibition against contracting out of a possessory right of the matrimonial home, determining custody and child support obligations. In this case, the marriage contract is enforceable because it was made (1) in writing, (2) signed by both parties and (3) witnessed. There was no evidence of incapacity or duress which makes the marriage contract in this case valid.

This Post Has One Comment
  1. I agree with the courts rational in deciding that the ‘maher’ amount should be paid to the wife due to the fact that it is binding under the Family Law Act, especially since it is in writing, signed by the parties and witnessed. My only concern is how the maher amount is determined. My understanding from reading this case is that the maher amount is simply an arbitrary amount which is not based on any financial considerations. As part of Muslim law, a man is required to pay this sum of money to his wife in addition to her rights and entitlement under the current family law. I question what the court’s opinion would have been if the maher was a very large amount and was being paid in addition to equalization and support? Further, what if the husband at the time of separation was financially unable to pay his wife both the maher and other property/support payments? Given that the parties did not have independent legal advice at the time that the maher amount was decided, the husband may not have been fully aware of his obligations under the family law, which may have substantially lowered the maher amount that he agreed to.

Leave a Reply

Your email address will not be published. Required fields are marked *