Written on behalf of Feigenbaum Consulting
In a recent Alberta decision, the court ruled that a marriage contract signed in Pakistan was unenforceable in Canada because it did not meet the legislative requirements.
The husband and wife were married in Pakistan in 2010 or 2011. They moved to Canada in 2013 and separated in June 2017 while living in Calgary, Alberta. They have two children: a son born in October 2012 in Pakistan and a daughter born in October 2014 in Canada.
The wife commenced divorce proceedings and an action for a division of the parties’ matrimonial property under the Matrimonial Property Act (the “MPA“) in March 2018.
Despite their residence in Alberta, on July 9, 2019, the husband served the wife’s counsel with what he claimed was a Divorce Certificate that he had obtained in Pakistan bearing that same date. The wife denied any knowledge of the alleged Pakistani divorce prior to her counsel’s receipt of the certificate.
One of the issues at hand was whether their Pakistani Nikah/Mahr marriage contract could be enforced and how the matrimonial property should be divided.
Among other issues, the court had to determine whether the Nikah was a valid matrimonial property agreement under the MPA.
In Islamic law, marriage – or more specifically, the marriage contract – is called Nikah.
The husband maintained that the Nikah should govern the parties’ division of matrimonial property, not the MPA. The wife disagreed.
The court began by explaining that the onus was on the husband to demonstrate on a balance of probabilities that the Nikah was a valid enforceable contract under Alberta law.
The court observed that the Nikah itself appeared to be a standard, fill-in-the-blanks, boilerplate agreement and that it said very little about the distribution of matrimonial property on marriage breakdown.
The court then explained that s. 38 of the MPA sets out certain formal requirements that must be complied with by parties seeking to enter into such an agreement in contemplation of marriage. If any of the following formalities are not satisfied, the court will not enforce the agreement:
38(1) An agreement […] is enforceable if each spouse or each person, …, has acknowledged, in writing, apart from the other spouse or person
(a) that the spouse or person is aware of the nature and the effect of the agreement,
(b) that the spouse or person is aware of the possible future claims to property the spouse or person may have under this Act and that the spouse or person intends to give up these claims to the extent necessary to give effect to the agreement, and
(c) that the spouse or person is executing the agreement freely and voluntarily without any compulsion on the part of the other spouse or person.
The court explained that the required acknowledgement must be made before a lawyer other than the lawyer acting for the other spouse, stating:
“The acknowledgement is intended to ensure that if there is an unequal balance of power between the future spouses, the court has reasonable assurance that the party entering into the agreement on marriage understands and knows that they have property rights but are willingly giving up those rights.”
The court found that in this case there was no certificate of acknowledgment and the Nikah had not met the s. 38 requirements because the wife had not obtained independent legal advice nor was she given the opportunity to negotiate any of its terms or provisions. Rather, the wife had simply been told to sign the Nikah at the time of the marriage in Pakistan. The court concluded:
“I find that [the wife], who did not receive independent legal advice, may not have fully understood or may not have had a clear appreciation of the implications of the Nikah or of the rights and obligations created and affected by it. Moreover, there was a vast inequality in bargaining power, as the marriage had been arranged by the parties’ parents. [The wife] had no opportunity to negotiate its terms or provisions freely. Her willingness and motivation to sign the Nikah arose from the fact that there would be no marriage if she did not do so. I find that it was the inequality of bargaining power that induced [the wife] to sign the Nikah.”
Therefore, the court ruled that the Nikah, as an alleged pre-nuptial contract, was unenforceable in Alberta. As a result, the couple’s matrimonial property, like all married couples in Alberta, would be divided in accordance with the MPA.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.