Before he married and moved to B.C., Ossama Aziz promised that if he ever divorced his wife, he would pay her 500 grams of 21-carat gold — worth about $21,000 at today’s prices.

He sealed the contract with an upfront payment — a reverse dowry of sorts — of 70 grams of 21-carat gold, worth about $3,000.

The written agreement, called a mahr, is a long-standing tradition under Islamic marital jurisprudence. The gift, or monetary contribution, is promised by a Muslim suitor to his wife-to-be. It generally involves two parts: an advance portion to be paid at the time of marriage and a deferred portion to be paid only if the couple divorces. The sums are negotiated between the parties before the marriage.

The marriage between Aziz and his wife, Huwayda Al-Masri, broke down and a legal dispute ensued over payment of the mahr. It is one of a handful of cases across the country that have ended up in court.

Judges tasked with these rulings are put in the often-difficult position of enforcing Canadian contract law while remaining sensitive to cultural and religious traditions. The rulings so far have been divided.

In Kaddoura v. Hammoud (1998), the Ontario Court of Justice denied a woman a $30,000 mahr, noting “the obligation of the mahr is a religious obligation and should not be viewed as an obligation that is justiciable in the civil courts of Ontario.”

In N.M.M. v. N.S.M (2004), B.C. Supreme Court Justice Jacqueline Dorgan held that a mahr was enforceable, referencing two previous cases in B.C. in which mahrs were also recognized.

“Our law continues to evolve in a matter which acknowledges cultural diversity,” Dorgan said in her ruling. “Attempts are made to be respectful of traditions which define various groups who live in a multicultural community. Nothing in the evidence before me satisfies me that it would be unfair to uphold provisions of an agreement entered into by these parties in contemplation of their marriage, which agreement specifically provides that it does not oust the provisions of the applicable law.”

In the most recent B.C. case, Aziz, an Iraqi-Canadian now living in Ontario, and Al-Masri, an Iraqi-American now living in Vancouver, were married in Jordan before moving to Canada.

As part of a Jordanian marriage contract executed in 1997, Al-Masri and Aziz agreed to the payment scheme. And both parties agreed that Aziz paid the advance portion, according to court documents filed in B.C. Supreme Court. However, Aziz has not paid the deferred portion following their divorce.

Justice Arne Silverman ruled last week the agreement was unenforceable — but only due to a technicality in the wording of the contract. Al-Masri’s lawyer, Peter Busch, said she will appeal.

Busch said mahr agreements appear to be fairly common in both Canada and the U.S., though many women are having difficulty persuading the courts to enforce them due to religious content and conflicts with Canadian divorce jurisprudence.

Busch said courts appear to be handling events on a case-by-case basis.

Parin Dossa, a professor of anthropology at Simon Fraser University, says mahr, while not unusual in Canada, appear to be becoming less common.

“Couples are opting to move away from it,” she said.

“This has to do with the reconfiguration of extended families which no longer live under one roof.”

Source : Vancouver Sun