It is not uncommon in some eastern cultures, particularly in Iran, India, Pakistan, and other Arab countries, to enter into marriage agreements wherein a husband commits to pay an agreed-upon sum of money, usually in the form of gold coins, to his wife. This amount can be summoned by the wife at the beginning of the marriage, the end, or at anytime in-between. Often referred to as Maher (or Mehr, Mahr, Mohr, Meher, Mehrieh, Mahir, or Mahriyeh), the underlying intent of such agreements is to provide security to the wife in the course of a relationship.

In Canadian law, courts have tried to be flexible in interpreting and accommodating other cultures’ marriage agreements, including those that contemplate maher. In British Columbia, the date an agreement was entered into by the parties is of significance, since the family law legislation in the province changed on March 18, 2013. Now, agreements entered into before that date will need to be considered using the former Family Relations Act (“FRA”), pursuant to s. 252(2)(a) of the Family Law Act (“FLA”), whereas agreements entered into after that date will be interpreted under the new FLA.

Once the date of an agreement is determined, the court must decide whether the agreement satisfies the definition of “marriage agreement” under the law. Section 61(2) of the FRA defines a “marriage agreement” as “an agreement entered into by 2 people before or during their marriage to each other or on execution of the agreement, whichever is later”, for ownership in, or division of other property during marriage.

If the s. 61(2) threshold is passed, the court determines whether the amount of maher was within the means or contemplation of the parties at the date it was agreed upon. This includes a determination of the fairness of the contract with respect to quantum. The higher a maher amount is set at the outset of a marriage, the likelier it is that the trier of fact will interpret it to be symbolic rather than binding, as neither party would have had the means to enter into such a contract.

If found to be symbolic, s. 65 of the FRA gives the court the power to re-apportion the marriage agreement on the basis of fairness. In determining fairness, the court looks to multiple factors set out in s. 65, such as duration of the marriage, for example.

The court has wide discretion in interpreting marriage agreements it deems unfair, and the outcome may not always be what a party may have contemplated at the outset of a family matter. As each case is highly fact specific, individuals should inform themselves of their rights prior to entering into marriage agreements by seeking independent legal advice.

This article does not provide legal advice and the information should not be taken as such. For proper legal advice and current information about the law, you must speak to a lawyer.