The paper may be in a safe at home, in a language most lawyers cannot read, or tucked inside a wedding album along with photos from a banquet hall in Brampton. It was signed in front of an imam, a rabbi or relatives, maybe twenty years ago, and nobody thought about it again until the marriage ended. Now one spouse says that it entitles them to a large sum, and the other says it was just a religious formality. Which is right?
Ontario law has a fairly clear starting point on that question. A religious marriage document is not automatically binding simply because it is religious, and it is not automatically void for that reason either. Courts look at it through the ordinary rules of contract and family law. If it meets those rules, it may be enforceable like any other domestic contract, and it can have a significant effect on the financial outcome of a separation.
This article is general information about Ontario law and not legal advice, and it does not offer any view on religious law. A faith leader can tell you what a document means in your tradition. The question here is what it means to an Ontario court.
What kinds of documents are we talking about?
Peel Region is home to many faith communities, and the documents that come up vary:
- Nikah contracts and mahr (also spelled maher or mehr). A Muslim marriage contract usually includes a mahr, a promise by the husband to pay or transfer money or property to the wife, whether at the wedding, on demand, on the end of the marriage, or on his death.
- Ketubah. A Jewish marriage document that sets out a husband’s obligations, including a sum payable to the wife.
- Religious prenuptial agreements. Some couples sign a specific document about religious divorce or about going before a religious tribunal.
- Dowry and wedding gift arrangements. These may not be contracts in a formal sense, but jewellery, gold and cash exchanged around a wedding can give rise to disputes about ownership.
Many Sikh, Hindu and Christian couples have no such document at all, though they may have family understandings or informal lists of gifts. Those raise a question of proof more than one of contract law.
The test: is it a valid domestic contract?
Part IV of the Family Law Act governs marriage contracts. Section 52 lets two people who are married, or who intend to marry, agree on their rights and obligations during marriage, on separation or on death, including property and support. Section 55(1) then sets the formal requirements. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed.
The Ontario Court of Appeal applied this directly in Bakhshi v. Hosseinzadeh, 2017 ONCA 838. There, a couple had signed an Islamic marriage contract in Iran. The court said its role was confined to enforcing only those undertakings that fulfil the requirements of a civil domestic contract under provincial legislation. The document in that case, which was in writing, signed and witnessed, met that test, and the court treated the gold coin obligation as enforceable. In other words, the court was not applying religious law. It was applying Ontario contract rules to a document that happens to have a religious origin.
So the first things a lawyer will check are simple. Is it written? Did both spouses sign it? Did someone witness the signatures? A document signed only by the groom and an official, or by a relative on the bride’s behalf, can raise problems. Ontario courts have some ability to relax the witnessing requirement in appropriate cases, but it is unwise to rely on that.
Documents signed in another country
Many of these contracts were signed abroad. Section 58 of the Family Law Act says that the manner and formalities of a domestic contract, and its essential validity and effect, are governed by the proper law of the contract. A contract under the law of another jurisdiction may also be valid in Ontario if it was entered into in accordance with Ontario’s internal law. Even so, certain Ontario protections continue to apply, including the power to set aside contracts under section 56 and the power to set aside support waivers. This can be a complicated analysis, particularly when a court needs evidence about the foreign law. If the document came from elsewhere, get a certified translation and tell your lawyer what you know about how and where it was signed.
How a contract can still be set aside
A document that meets the formal requirements is not beyond challenge. Under section 56(4), a court may set aside a domestic contract, or part of it, in three situations:
- a party failed to disclose significant assets, debts or liabilities that existed when it was made
- a party did not understand the nature or consequences of the contract
- otherwise in accordance with the law of contract
The third category can cover duress and unconscionability. These issues come up often with religious documents, because many of them are signed at the wedding itself or just before it, by young people, under family pressure, sometimes without any explanation or legal advice, and sometimes in a language one of them does not read. The ceremony may also feel like an unusual moment to bargain. None of this automatically defeats a contract, and in Bakhshi the court declined to set the document aside. These are, however, the factual arguments you should expect.
A very large amount can also invite scrutiny, especially if it is out of proportion to the means of the person who promised it. The opposite can also be true, where a modest amount promised decades ago in a foreign currency has changed in value. Both sides need a current valuation.
What it does to the equalization calculation
This is where the outcome can surprise both spouses.
In Bakhshi, the trial judge had added the mahr on top of the wife’s equalization payment, treating it as something excluded from net family property. The Court of Appeal held this was an error. Under section 4(2) of the Act, property is excluded if the spouses have agreed by a domestic contract to exclude it, and that document contained no such term. Unless the contract shows the spouses meant to exclude it, the obligation is treated like any other payment obligation and is included in the calculation. The court distinguished an earlier case where the contract’s wording expressly excluded the payment.
So wording matters a great deal. The Community Legal Education Ontario resource Steps to Justice describes it the same way: the effect on family property depends on the agreement’s wording.
In practice, a mahr without exclusion language tends to appear as an asset of the spouse who is owed it and a debt of the spouse who owes it. Because it reduces one spouse’s net family property and increases the other’s, the equalization payment changes as well. A spouse expecting to receive both the full mahr and the same equalization payment may find that the numbers are quite different from what they assumed. How the obligation is treated on the date-of-marriage side of the calculation can also affect the result, and Superior Court judges have addressed this. Have the calculation run properly for your case rather than estimating it.
Valuation creates its own work. Mahr amounts may be stated in gold coins, a currency that has changed dramatically, or a quantity of goods. A court may need evidence of the value on the relevant dates.
What a religious contract cannot do
Even a perfectly valid document has limits.
Parenting. A marriage contract cannot decide decision-making responsibility or parenting time. Section 52 says so expressly, and section 58 makes such a term unenforceable in Ontario even in a foreign contract. A clause saying that children go with the father at a certain age, for example, will not bind a court. Decisions about children are made on their best interests. A term about a child’s religious upbringing may be something the parents agreed to, but a court can disregard a provision about education and moral training where that serves the child’s best interests.
Child support. A child’s right to support belongs to the child, and a court can disregard a term that is unreasonable having regard to the child support guidelines. A mahr does not replace child support.
Spousal support. A person who signed a mahr keeps the right to claim spousal support unless it has been properly dealt with, and a waiver in any contract can be set aside in some circumstances under section 33(4).
The matrimonial home. A term limiting a spouse’s right to possession of a matrimonial home is unenforceable under section 52(2).
A forfeiture for leaving. Religious terms that remove a right if a spouse starts the divorce may be argued about, and a court will look at whether this is a clear contractual term, and whether it would be fair to enforce it. Section 56(2) separately makes clauses that depend on chastity unenforceable.
Religious tribunals and decisions
Ontario law draws a firm line here. Under section 59.2 of the Family Law Act, when a third person makes a decision on a family matter in a process that is not conducted exclusively in accordance with the law of Ontario or another Canadian jurisdiction, the process is not a family arbitration, and the decision has no legal effect. People can still seek religious advice, and the province’s guidance says that they can voluntarily comply with a religious decision. A court will not enforce it as an award.
A religious official can act as a family arbitrator, but only if they have the required training, apply Ontario or Canadian law, screen for violence and power imbalances, and follow the other rules. Even then, the parties cannot agree to opt out of these protections.
What this means in practice: a decision from a religious body may settle a matter of conscience within your community, but it does not change your rights in a Brampton courtroom. If someone tells you that you must accept such a decision about your children or your money, you should get legal advice before you agree to anything. In particular, do not sign any paper as a result without understanding how it would be treated.
Religious divorce and barriers to remarriage
A civil divorce does not necessarily end a religious marriage. In some traditions, one spouse’s cooperation is needed for a religious divorce, such as a Jewish get. A spouse who refuses can prevent the other from remarrying within their faith, and can use that refusal as a bargaining chip in a family case.
Canadian law responds to this in a few ways:
- Divorce Act, section 21.1. A spouse may file an affidavit stating that the other spouse is blocking their remarriage within their religion, and that they asked in writing for that barrier to be removed. If the other spouse does not respond within the time set out, the court may dismiss that spouse’s applications and strike their other filings, subject to sincere religious or conscientious grounds. The section does not apply where a religious body or official, rather than the spouse, controls the removal of the barrier.
- Family Law Act, section 2. A similar statement process is available in Family Law Act proceedings. A party who fails to respond may have a proceeding dismissed or a defence struck.
- Family Law Act, section 56(5). A court may set aside all or part of a separation agreement or settlement if the removal of barriers to remarriage within a spouse’s faith was a consideration in making it. This is designed to discourage trading a religious divorce for concessions on money or children.
If you have made a contractual promise on this subject, it may be enforceable in its own right. In Bruker v. Marcovitz, 2007 SCC 54, a case from Quebec, the Supreme Court of Canada held that a husband who broke a promise in a settlement to give a get could be ordered to pay damages. The law in Ontario has its own statutes and contract rules, but the case shows that a promise is not beyond the reach of the courts just because it concerns religion.
If you are about to marry
Couples who plan to have both a religious ceremony and a clear legal position can avoid most of the problems described here. Ask a lawyer about these things well before the wedding:
- Make the document meet Ontario’s formal requirements, with signature by both spouses and a witness.
- State the amount, the timing and any conditions clearly, as Steps to Justice recommends.
- Say expressly whether the amount is excluded from net family property, or included.
- Consider a separate marriage contract, drafted by lawyers, that refers to the religious document and makes sure that the two work together.
- Exchange financial disclosure, and have each spouse get independent legal advice.
- Sign in advance, not in the middle of the wedding day, if you can do so while respecting your tradition.
- Provide a translation if either person is not comfortable reading the original language.
If you are separating and have one of these documents
- Find the original, or the best copy you can get.
- Get a certified translation, and tell your lawyer who signed, who witnessed it and what you were told at the time.
- Note whether any part has already been paid, and keep the records.
- Do not throw it away, or sign anything releasing your claim, before you get advice.
- Include it in your financial disclosure if you are in a court case. A sworn financial statement requires disclosure of your assets and debts, and this may be one of them.
Religious documents often carry meaning well beyond their dollar value. It can be hard to hear them discussed as an asset or debt, and that is a reasonable feeling. Getting advice from someone who understands both the legal questions and why these documents matter to your family can make a hard conversation easier. Our family law team can review what you have, our divorce page explains the civil process, and you can contact the office to arrange a consultation.