The Enforceability and Application of Religious Marriage Contracts Upon Dissolution of Marriage in Ontario

The Parallels: The Enforceability and Application of Religious Marriage Contracts Upon Dissolution of Marriage in Ontario

By: Samah Rahman and Jeffrey Mammon

At Gelman & Associates, our family law lawyers have experience in handling family law matters for people of all faiths. In fact, our family law lawyers come from various different backgrounds and faiths themselves and have handled a lot of cases that deal with Islamic and Jewish marriage traditions and laws. We asked family law lawyers Samah Rahman and Jeffrey Mammon to explain how Jewish and Islamic matrimonial laws are accommodated in family law proceedings in Ontario.

PART 1: Islamic Marriage Contracts

Islamic Marriages and Mahr

Formalizing a marriage in a Muslim household, is simple; it is at the separation where questions arise. Fortunately, the Ontario courts have provided some guidance at the dissolution of a marriage to deal with the more contentious aspects of an Islamic Divorce in the context of civil law.

Couples who practice Islam in Ontario can marry under both the religious and the civil regime – this means, the Imam conducting the marriage may be a registered marriage officiant ordained to provide a civil marriage license; and if not, the parties must have an additional ceremony conducted by a civil marriage officiant. In this process, the marriage is reconciled by the teachings of the faith, and recognized by the laws of the land.

There are three essential components for an Islamic marriage to be solemnized: first, the couple must have capacity to understand the marital commitment; second, the marriage must be witnessed; and finally, the Mahr (also known as “Mehr”, “Meher” or even “Maher”) must be agreed to, and its terms must be preserved in the Islamic Marriage Contract. The latter and most intricate of the three, the Mahr, forms the first part of this discussion.

Mahr – what is it?

Mahr is an obligatory gift with a monetary value, provided from the husband to the wife, which deems the Mahr, a right of the wife, and an obligation of the husband under Islamic law. The Mahr is therefore, treated as the wife’s exclusive property. The terms of the Mahr, specifically the amount and the process of fulfilling it, is negotiated prior to the wedding and enumerated in the Islamic Marriage Contract. The couple can mutually agree to the payment schedule of the Mahr, for instance, it can be paid as a lumpsum or in increments, either at the date of marriage or at a later date, subject to the request of the wife to receive it. If any Mahr amounts remains outstanding at divorce, the arrears must be cleared.

Mahr – is it enforceable in Ontario courts?

Historically, courts have been cautious about encroaching on sacred terrain when interpreting family law; however, the Supreme Court of Canada in Marcovitz v Bruker, (2007 SCC 54), settled this contention. The case held that the religious aspect of a contract does not impact nor negate its enforceability. This was also reaffirmed, specifically in the context of the Mahr, in Khamis v. Noormohamed (2011 ONCA 127). The courts here, held that Mahr payments are enforceable so long as it meets the statutory requirements of a domestic contract pursuant to 55(1) of the Family Law Act (FLA). The statutory requirements are: the Mahr obligation must be stipulated in writing, signed by the parties, and witnessed.

Mahr – is it spousal support?

Although the principle behind the Mahr, is to provide the wife financial security if she is predeceased by her husband or if the parties divorce, it is an amount separate and apart from spousal support or child support. Courts do not consider the Mahr as a replacement for spousal support, but instead, a supplement to a spousal support calculation unless the Mahr payment will significantly alter the financial picture of the wife.

Mahr – does it form a parties’ Net Family Property for equalization?

Bakshi v Hosseinzadeh (2017 ONCA 838) marks the seminal case which questions whether property transferred as Mahr, should be excluded pursuant to section 4(2) of the FLA or whether it should be included in the parties’ Net Family Property (NFP) for purposes of the equalization calculation.

The Court of Appeal found that since a party’s NFP was to include all property owned by the spouse at separation, and further, that nothing in the Islamic Marriage Contract expressed a provision to exclude the Mahr from the wife’s NFP calculation, that it must be treated as an asset to the wife at the date of separation and equalized correspondingly.

The net result is, while courts enforce the payment of Mahr on paper, the full amount may be reduced through the process of equalization by the time it reaches the wife. There is commentary that this is a departure from the religious intent of the Mahr given that it is meant to be the absolute right of the wife. Notwithstanding, the courts are firm in treating the Mahr at its intersection with common law, as a term in the contract to be enforced without allowances made for the divine principles behind it.

This issue was most recently litigated in Faizian v. Ashouri, (2023 ONSC 6703). Here the wife contended that the Mahr should be treated outside the equalization calculation, but still wished to recover the full amount owed to her.

Ultimately, the court classified the Mahr as a marriage date asset for the wife, and liability for the husband. In this determination, the bench recognized that once the Islamic Marriage Contract was signed, the Mahr debt was payable immediately upon the parties’ marriage, and specifically upon the wife making a demand to receive payment.

Importantly, the case also reaffirmed that absent any evidence of an objective intention at the time of the contract to treat the Mahr differently, the payment must be treated under the FLA like any other payment obligation between the spouses, i.e. it must be included in the NFP calculations. This is pursuant to section 4(2)6 of the FLA, which says that parties can legally exclude property that the spouses have agreed by a domestic contract to not be included in the spouse’s net family property. In other words, unless the Islamic Marriage Contract is explicitly clear that the Mahr amount, once received by the wife, will not factor into equalization calculations, the presumption is to have it be included as part of the calculation. It should be incumbent on parties to discuss their intent prior to marriage, and prepare a clearly worded marriage contract, which deals with how the Mahr is to be treated, in the event of a separation.

PART 2: Jewish Marriage Contracts

The parallels in Jewish and Islamic Family Law

In comparison to the requirements of the Islamic wedding and marriage ceremony, in Judaism, the newlyweds in the Jewish faith must also enter into a religious marriage contract.  The Jewish marriage contract is called a “Ketubah”.  For the purposes of this article reference will be made to the Jewish traditional religious Ketubah used in the Orthodox, modern Orthodox, and many Conservative Jewish communities that refer to the married parties as the “Husband” and the “Wife”, as similarly done with the Mahr.

Ketubah- what is it?

Just as important as the Mahr is in the Islamic marriage ceremony with regards to the Husband’s financial obligation to the Wife, the Ketubah is an integral legal document that forms part of the Jewish wedding ceremony and sets out the Husband’s legal and financial obligations to the Wife in the event of the marriage breakdown and divorce.  The Jewish marriage contract’s central text derives its roots from the Talmudic period of Rabbinic Judaism from well over two thousand years ago.  To date, the Ketubah remains in the original ancient Aramaic text written in Hebrew script.  There are some Jewish communities that now have the Ketubah text written in English translation or with both Hebrew and English side by side.

Both documents were historically viewed as religious in nature by the Courts here in the province of Ontario, as those documents form part of those faiths’ traditions and customs.  Within Judaism there are different ethnic and cultural groups of Jews worldwide who are descendants from ancient Jewish communities from North Africa, Middle East, Central Asia and Europe.   As such, each unique Jewish community over the centuries has developed their own marriage customs as part of the marriage ceremony.  Interestingly, the central theme that is consistent in all traditional Jewish weddings worldwide is the religious nature of the marriage such as the “Chuppah” (wedding canopy), blessings recited by the Rabbi (the religious ordained official conducting the service) and the signing and reading of the Ketubah (the marriage contract).  The exception today is that in many Conservative and Reform Jewish communities those denominational groups have made a number of additions or revisions to the original ancient Ketubah text to conform with their denominational group’s outlook taking into account today’s modern times (for example, same sex marriages & interfaith marriages).

As demonstrated with the Islamic Marriage Contract, over the last 20 or so years in the province of Ontario there is now an acceptance by the Civil Courts that despite being religious in nature as part of the Muslim faith the Mahr is an enforceable part of a marriage contract in the Province of Ontario.   The case law has been established at all levels of Court in Ontario that the marriage contract is enforceable and forms part of the property settlement in matrimonial proceedings.  Historically, that was not the case as the courts over the years were reluctant to dive into the religious realm and refused to enforce contracts or terms that are religious in nature (Kaddoura v. Hammoud, 1998 CanLII 14937 ON SC).  The same was true with respect to religious contract and disputes within the Jewish community as the Ontario Courts would not get involved with such litigation and deny such cases that came before the civil courts (Levitts Kosher Foods Inc. v. Levin, 1999 CanLII 14818 ON SC). Those matters were left to the Jewish Rabbinical Court (“Beit/Beth Din”) to deal with and mediate disputes that were religious in nature according to Jewish Law (“Halakhah”) between the disputing parties. The tide has changed over the last two decades as seen in leading Supreme Court of Canada cases like Bruker, supra, where courts enforce so called religious in nature terms/actions that are agreed upon within the context of a binding separation agreement or domestic contract.

In Judaism, when the parties marry, especially here in Ontario, as part of the ceremony there is both the civil marriage license signed by the parties and the clergy and the religious ceremonial document known as the Ketubah.  When a couple wishes to divorce they would need to obtain the civil divorce in the Ontario Superior Court of Justice under the Divorce Act of Canada and also seek and obtain a religious  divorce (known as the “Ghet” or “Gett”) with the  “Beit Din”/ “Beth Din” (Jewish Rabbinical Court).   In order for a party to remarry within the Jewish faith they will need to obtain the Ghet from the Beth Din.  Without the Ghet the party wanting to remarry is unable to do so within the Jewish faith.

Today, many of the modern drafted Ketubah’s in Ontario now include an additional provision as part of the marriage contract that the newlyweds agree that in the event of a separation that the Husband will cooperate and not refuse or deny to grant the religious divorce (Ghet) with the Beth Din so to allow the Wife to remarry in the future in accordance with the Jewish faith.  The enforcement of the Ghet and non-compliance of or delay in granting of the Ghet has been litigated to the highest Court in Canada at the Supreme Court (Bruker, supra) where the former Wife sought damages from the former Husband for his failure to comply with the Ghet causing the Wife to be unable to remarry in the Jewish faith as she was still “tied” to the first Husband as his Wife and unable to formally obtain a divorce.

Ketubah – is it enforceable in Ontario courts?

Surprisingly, a current search of the term “Ketubah” or “Jewish Marriage Contract” on the main legal case law search site (CanLII) under “Ontario Cases” only results in about 4 cases.  This is very different to the “Islamic Marriage Contract” search results which results in significantly more reported cases and litigation with respect to the enforcement of the terms marriage contract.  In one case the Wife initially attempted to offset the equalization payment she owed the Husband by the amount owing to her under the Ketubah.  The parties disputed the monetary value stated in the Ketubah of the amount owing to the Wife.  The Ketubah was not produced at trial and there was no admission that it was an enforceable contract (Katz v. Nimelman, 2007 CanLII 51340 ON SC).   Another case had to do with obtaining a Ghet and one party filing with the Court as an Exhibit a forged Ketubah which left out the part which obliged the Husband to pay the Wife monies (Wolf v. Wolf, 2014 ONSC 7434).   The other cases simply referenced the parties had a Jewish wedding ceremony that included the Ketubah and those cases had no claims sought for such enforcement on the Ketubah (Libbus v. Libbus, 2008 CanLII 53970 ON SC  and Debora v. Debora, 2004 CanLII 44791 ON SC).    In the only other case, that matter had to do with the dispute as to the parties’ date of separation and evidence provided by the Rabbi who was a witness in the proceedings.  The original Ketubah was destroyed by the Husband and the Rabbi testified that the parties then attended in October, 2004 to obtain another marriage contract. A ceremony was performed again, the contract was translated into English and read aloud, and the parties signed it with two witnesses. The husband had stated in his claim that the separation date was in 2003.  The Court determined based on the evidence of the signing of the new Ketubah in 2004 that the date of separation was not in 2003 as alleged by the husband as the parties were still cohabitating in 2004 (Linov v. Williams, 2007 CanLII 7407 ON SC).

It appears very puzzling that there is a lack of case law on the enforcement of the Ketubah, as one would deduct that if Mahr payments are enforceable in Ontario the same logic should apply to the Ketubah and have the same results as an enforceable contract.  This however appears not to be the case.  There are perhaps a number of reasons to explain why this may not be the case.  As it is religious in nature it is often perhaps still overlooked or not bothered by the separating parties in their Family Court dispute or the parties have instead dealt with those monetary obligations of the Ketubah as part of their religious requirements with the Jewish Beth Din and those terms of settlement are obtain within the religious Divorce (the “Ghet”).

A further reason for it not being raised in the Civil Courts in Ontario is perhaps that in general the Ketubah’s traditional ancient Aramaic text has an automatic monetary amount listed of “200 Zuz of Silver” (monetary value of silver coinage used at the time) which in today’s silver market prices is maybe worth perhaps only $1,800 according to some Rabbinic sources.  As such, the amount to enforce and fight over is not enough monetarily as one would end up spending much more in lawyer/ legal fees to litigate in Family Court.   However, it must be noted that in many Jewish communicates of descendants from Sephardic Jews (e.g North Africa and Middle East) the Husband would negotiate with the Bride’s family a much higher amount and pledge significantly more monetarily in the event of separation and that amount negotiated would be entered into the Ketubah in addition to the basic “200 Zuz of silver”.  They would add a value usually in multiples of a good luck/spiritual number that is used in Judaism or in that ethnic cultural group’s community (most often in multiples of 5 “Hamsa” or 18 “Chai”) and it is very common to see a Ketubah with the monetary amount of $555,555 or $360,000 to be paid to the Wife should the parties divorce.  This same practice is very similar to the Mahr, where the parties would negotiate for example, the amount of gold coins, refer to that number in the Mahr, and have it form part of the marriage contract.   Just as it is the case with the Mahr the most important clause of the Ketubah is the financial obligation payable to the Wife as the settlement should they divorce to ensure that the Wife is financially secure after the divorce.

Upon further inspection of the Ketubah, perhaps another reason that explains why there are far and few cases today in the Ontario Courts with respect to the enforcement of the terms in the Ketubah might have to do with the surprising fact that with most Orthodox communities neither the Husband nor the Wife actually sign the Ketubah.  The actual Ketubah document is only signed and dated by two witnessed and at times also the Rabbi and then the document is read out loud at the ceremony to the bride and groom and all those present.  The bride and groom simply verbally acknowledge and accept and agree to the terms of the Ketubah and consent to the wedding taking place. As stated above, despite the majority of the Ketubah speaking to the contractual obligations by the Husband to the Wife upon the breakdown of the marriage, the document itself is not signed by the Husband and Wife (the contracting parties).  This results in the Ketubah not meeting the definition of a “domestic contract” under the FLA, as the parties themselves did not sign the marriage contract.  This perhaps further explains why currently there are very few known litigated cases in Ontario when dealing with the enforcement of the terms of the Ketubah.

Only recently, there is now a growing trend in the modern Orthodox Jewish community and other Jewish denominations that the newlyweds must sign the Ketubah with the two witnesses and the Rabbi.   If such is the case then the Ketubah similarly like the Islamic Marriage Contract (as that is signed by both the Husband and the Wife and the two witnesses) will therefore fall under the definition of an enforceable contract under the Family Law Act. The trend today is that many Rabbis before the wedding ceremony meet with the newlyweds and explain the importance of the Ketubah and the terms of the Ketubah so they both understand the marriage contract and that the Husband and Wife will cooperate with the obtaining of the Ghet upon separation.

It will be just a matter of time before more cases come before the courts for enforcement of the Ketubah (as with all groups and communities the divorce rates are relatively the same and as is the case with all married couples a large number will eventually sadly get divorced).  Given the new trend that more Ketubah’s are now being signed by both the Husband and Wife and witnessed as a formal marriage contract, in the future should they separate and divorce their Ketubah will meet the definition as an enforceable domestic contract.

Contact Gelman and Associates For Legal Assistance with Islamic or Jewish Family Law Matters

It is good practice to have the religious marriage contracts reviewed by a family law lawyer prior to the couple signing it to ensure that it is a valid and enforceable legal document under the Family Law Act of Ontario.  The newlyweds should each obtain independent legal advice in regards to the document to ensure that they both understand the nature of their financial and legal obligations under the marriage contract in the event of divorce.  This will protect the integrity of the process and the negotiations of the terms of the marriage contract and remove any possible debate as to the validity and enforcement of the terms of the contract should the parties ever separate down the road.   It will also save them thousands of dollars of potential legal fees post-separation knowing that they have an enforceable marriage contract in the event of separation.

At Gelman and Associates, we have experience providing both our Jewish and Muslim clientele advice at the start or end of their marriage, and look forward to working with both communities to help in their time of need. Contact us for a consultation for valuable legal advice.