Court Strips Islamic Divorce Protection From Women

Most divorces are tedious processes. Is there a pre-nup? Where do the kids go? Who gets the house, the Michael Jackson CD collection? But when the marriage is based on religious principles that include some financial compensations that law doesn’t account for, things can be even trickier.

In Islamic tradition, an written arrangement called a mahr consists of a two-part transaction set at the beginning of a marriage, like a reverse dowry. The future husband pledges to give his wife-to-be a certain amount of money if he ever divorces her. He pays a portion of it up front when they are first united and completes the payment in case they divorce — similar to alimony, it is designed to protect her financially.

In countries where Islamic law isn’t the standard, payment of the mahr has caused some legal counsels a few headaches. Is the agreement still valid under a different jurisdiction and judicial system?

Careful to be sensitive to cultural and religious differences, courts are currently working this out on a case by case basis. In 1998, the Ontario Court of Justice denied a woman a $30,000 mahr because it’s a religious obligation “and should not be viewed as an obligation that is justiciable in the civil courts of Ontario.” This is the main reason why women often have trouble getting mahr payments enforced.

On the other hand, in 2004, Supreme Court Justice Jacqueline Dorgan of British Columbia judged that a mahr was enforceable, referencing two previous cases in the province in which mahrs were also recognized.

“Our law continues to evolve in a matter which acknowledges cultural diversity,” Dorgan said in her ruling. She then explained that no evidence proved to her that upholding the conditions of the mahr would be unfair or would compromise the application of Canadian marriage laws.

But will there ever be a definitive decision on which approach to take? With both, there seem to be huge risks. Does enforcing mahr prevent a woman from receiving alimony? And doesn’t the court’s refusal to make a husband pay the remainder of the money agreed to in the mahr let the man have an unfair upper hand on the woman’s financial future?

Still, it’s worth it to dig deeper these arrangements to see how they affect the lives Muslim women divorcing today. Are they a throwback to the past or an essential protection for women?

Contact the author here: sedera@morningquickie.com