Is a mahr (mehrieh) enforceable in Ontario after separation?

Often, yes. Ontario courts treat a mahr like any other marriage contract: if it is in writing, signed by both spouses and witnessed, a court can order the promised amount paid. The second half of the answer matters just as much: unless the mahr itself says otherwise, the Court of Appeal for Ontario has held that it is counted in the equalization of net family property, like any other debt between spouses.

A mahr is one kind of domestic contract. Our page on domestic contracts in Ontario covers marriage contracts, cohabitation agreements and separation agreements in general; this page deals only with the mahr, including one signed in Iran. It is one of our guides for Persian-speaking families in Toronto, where the mahr is often the first question after a separation.

How does a mahr claim move through an Ontario family case, step by step?

A mahr is not a separate lawsuit in most cases. It is raised inside the family case, alongside the divorce, support and the property claim, and it changes the property numbers.

The financial statement is where most mistakes happen. Our guide to which financial statement to file and what to attach explains the forms, and in Bakhshi the Court of Appeal noted that the wife's financial statement had listed the mahr in two places at once.

What test does an Ontario court apply to a mahr?

The Family Law Act lets people who are married, or about to marry, make a marriage contract about property, support "and any other matter in the settlement of their affairs" (section 52). Three rules then decide whether a mahr counts in Ontario:

• Form. A domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed (section 55(1)).
• Contracts made abroad. A contract governed by the law of another country is judged by that law, but it is also valid in Ontario if it was made in a way that meets Ontario's own rules (section 58). A clause about decision-making responsibility or parenting time in a marriage contract is never enforceable in Ontario.
• Religion is not a bar. The Court of Appeal has confirmed that an agreement with a religious aspect can be enforced if it meets the requirements of a civil contract, following the Supreme Court of Canada in Bruker v. Marcovitz. The court enforces only the parts that work as a civil domestic contract.

The court reads each mahr on its own wording, as a whole and in light of the circumstances when it was signed. Evidence about what the mahr meant to the couple, religiously or culturally, can be relevant to that reading, but it does not replace the words.

What did the Court of Appeal decide in Bakhshi v. Hosseinzadeh?

The couple married in Iran in 1995. Their mahr required the husband to pay the wife 230 gold coins on her request. They moved to Canada after the wedding, and in 2013 the wife started a family case in Ontario. The trial judge found that the mahr was a valid marriage contract under section 55(1), because it was written, signed by both and witnessed, and he saw no reason to set it aside: the terms were simple and the husband understood them.

The trial judge then left the mahr out of the property calculation and added it on top of the equalization payment. In 2017 the Court of Appeal held that this was wrong. Section 4(2) of the Act lets spouses exclude property from net family property only if they agreed to that in a domestic contract, and this mahr said nothing of the kind. Signed in Iran, by people who expected to live in Iran, it gave no basis to infer that they had Ontario's Family Law Act in mind. So the mahr had to be counted like any other obligation between spouses: a debt for the husband, an asset for the wife. The wife could still collect the mahr itself as a debt.

The court contrasted an earlier case, Khanis v. Noor Mohamed, where the mahr said the payment was "in addition and without prejudice to and not in substitution of" the husband's obligations under the law of the land. That wording excluded the mahr from net family property by necessary implication. The difference between the two outcomes came down to the words on the page.

Two other arguments in Bakhshi are worth knowing. The husband said the coins were payable only if he broke one of the behaviour rules listed in a second clause of the mahr. The courts disagreed: the two clauses were signed separately, and the second clause related to the wife's power of attorney to seek a divorce, so the payment was a demand obligation. The wife, for her part, argued that the mahr was like a dowry and should stay outside the calculation. The Court of Appeal answered that a dowry from the husband would be included too, because only gifts from third persons after the marriage are excluded (FLA, s. 4(2), para. 1).

Can a mahr be set aside?

Yes, on the same grounds as any domestic contract. Under section 56(4) a court may set aside a contract, or part of it, if a party failed to disclose significant assets, debts or other liabilities that existed when it was signed, if a party did not understand the nature or consequences of the contract, or otherwise under the law of contract. Section 58 makes these powers apply in Ontario even when the contract is governed by a foreign law, and section 56(7) says they apply despite any agreement to the contrary.

A separate rule protects against pressure around a religious divorce. A court may set aside all or part of a separation agreement or settlement if removing a barrier to the other spouse's remarriage within their faith was part of the bargain (section 56(5)). If you are asked to give up a mahr in exchange for cooperation with a religious divorce, read how a religious divorce fits with an Ontario divorce before you sign anything. If you would rather have a neutral person decide a mahr dispute, read the rules for family arbitration in Ontario first, because a decision under religious law has no legal effect.

How is a mahr in gold coins valued?

In the Bakhshi case the court put a dollar value on the coins and used that figure in the calculation. Under the Family Law Act, values for equalization are calculated as of the close of business on the valuation date, which is usually the date of separation (section 4). Each spouse has to prove any deduction or exclusion they claim (section 4(3)), so the person relying on a particular value for the coins should be ready to support it.

What if the marriage, the mahr or the property was in Iran?

Where the marriage took place does not stop an Ontario court from hearing the case, but other rules then matter: whether you can divorce here, how a foreign divorce is recognized, and which country's law governs your property rights. See married in Iran: divorcing in Ontario. For land, savings or a business in Iran, read whether property in Iran counts in Ontario. In Bakhshi itself, real estate in Iran was part of the equalization calculation.

What changes the answer?

• The exact wording. Property is left out of net family property only if the spouses agreed to that in a domestic contract (FLA, s. 4(2), para. 6). Words like those in Khanis can do it; silence, as in Bakhshi, cannot.
• Form. A mahr that was never written down, or was not signed by both spouses and witnessed, is unenforceable as a domestic contract (FLA, s. 55(1)).
• Disclosure and understanding at signing. Non-disclosure of significant assets or debts, or a failure to understand the contract, can lead a court to set it aside (FLA, s. 56(4)).
• How the clauses fit together. A payment clause signed separately from a list of conditions was read as a demand obligation in Bakhshi; a mahr written differently may be read differently.
• Later agreements. A settlement in which the mahr was traded for cooperation with a religious divorce can be set aside (FLA, s. 56(5)).
• Timing. The equalization claim must be started within the limits in FLA s. 7(3); see the deadlines in an Ontario family case.

A worked example

For example, imagine a couple who married in Tehran with a mahr of gold coins written into the marriage certificate, then moved to Vaughan and separated many years later. On the separation date the coins are worth $60,000. Apart from the mahr, the husband's net family property is $300,000 and the wife's is $100,000.

If the mahr were left out of both calculations and added on top, the husband would owe half the $200,000 difference, $100,000, plus the $60,000 mahr: $160,000 in total. Counted the way Bakhshi requires, the mahr is a $60,000 debt for him and a $60,000 asset for her, so the figures become $240,000 and $160,000. He owes half the $80,000 difference, $40,000, plus the $60,000 mahr: $100,000 in total. Because the family lives in York Region, the case would be heard in Newmarket, as explained in how York Region family cases work. These figures are invented to show the arithmetic; they are not a prediction for any family.

What mistakes do people make with a mahr?

1. Assuming the mahr is paid on top of equalization. Unless the mahr says so, it is counted inside the calculation.
2. Losing the original document or relying on a family memory of what was promised. Without a written, signed and witnessed record, it is not enforceable as a domestic contract.
3. Listing the mahr twice, or not at all, on the financial statement.
4. Giving it up in exchange for a religious divorce without legal advice.
5. Asking a religious authority to rule on it and expecting a court to enforce that ruling.
6. Waiting too long to start the property claim.

What to do this week

1. Find the marriage certificate or other document that records the mahr, and order a certified English translation. Ontario's court guide requires one for a foreign marriage certificate that is not in English.
2. Note who signed it and who witnessed it, and keep any proof of both.
3. Collect any later agreement about the mahr, including any promise made around a religious divorce.
4. Gather evidence of the value of the coins or other property promised, as of the separation date.
5. Start your financial statement and the documents for the property claim; equalization claims have strict time limits under section 7(3) of the Family Law Act.

Frequently asked questions

Is the mahr still owed if the wife asked for the divorce?

That depends on the mahr's own wording. In Bakhshi the husband argued that payment depended on his conduct, but the courts read the payment clause as a separate obligation payable on the wife's request.

Can a mahr be enforced if we married outside Ontario?

Yes, if it is valid under the law that governs it or was made in a way that meets Ontario's own rules (FLA, s. 58). Ontario's power to set aside a contract still applies to a contract made abroad.

Can a mahr decide who keeps the children?

No. A term in a marriage contract about decision-making responsibility or parenting time is not enforceable in Ontario (FLA, s. 58(c)). Parenting is always decided on the child's best interests.

Can we change or cancel the mahr after separating?

Spouses can make a new domestic contract, such as a separation agreement, that deals with the mahr. It must also be in writing, signed and witnessed, and each spouse should have independent legal advice.

Is a mahr the same as a dowry?

Not in Ontario law. The Court of Appeal noted that a dowry from the husband would be counted in net family property as well, because only gifts from third persons after the marriage are excluded.

Will an Ontario court order the religious divorce?

No. A court grants only the civil divorce, but the Divorce Act has a procedure for a spouse who refuses to remove a barrier to religious remarriage. See the guide on religious divorce linked above.

Related questions

If the marriage was registered in Iran, also read how to get a divorce certificate in Ontario, which many people need for records in Iran.

Sourena Sarbazevatan is a Persian-speaking lawyer, and you can discuss your mahr and your family case with him in Farsi, English or French. Call +1 (416) 628-2041 or reach us through the contact page.