Maher (alternately transliterated as mahr, mahar, mehr, or mehrieh) is a contract some Muslims enter into upon marriage. It refers not to the contract of marriage itself, but to a contractual dowry to be paid by the husband to his wife in the event of divorce or death. In Islamic law, Maher is a gift or contribution made by the husband-to-be to his wife-to-be, for her exclusive property, as a mark of respect for the bride, and as recognition of her independence. It is not, however, a gift in the traditional sense, but is in fact obligatory and the wife-to-be receives it as a right.
Maher can be cash, or any type of property given up front before the marriage or split into advance and deferred payments. The amount and timelines for payment will depend on customary considerations under Islamic law. In the case of deferred payment, the portion deferred has the effect of helping to look after a wife after divorce or after her husband’s death. Although a wife can waive payment of the Maher, she is entitled to it as a matter of Islamic religious principle.
Enforcing Maher agreements in Canada
A Maher is enforceable in Canadian courts to the extent that it adheres to applicable laws and requirements for a valid and binding contractual agreement between two parties. Each Maher is to be interpreted on its own terms and in consideration of the intentions of the parties at the time the contract was made.
Although Islamic law recognizes Maher without a written agreement, to enforce a Maher under provincial legislation it must be in writing, signed by both parties and witnessed. Litigating Maher agreements raises challenging questions as Islamic marriage and divorce laws do not always align with federal and provincial legislation.
Maher agreements have been recognized as valid in Canadian cases- sometimes awarded, sometimes not, depending on the particulars of each case.
Canadian cases that have determined the enforceability of Maher agreements:
- Kariminia v. Nasser, 2018 BCSC 695
- Bakhshi v. Hosseinzadeh, 2017 ONCA 838
- Nathoo v. Nathoo, 1996 CanLII 2705
- Kaddoura v. Hammoud (1998), 168 D.L.R. (4th) 503
- Amlani v. Hirani , 2000 BCSC 1653
- M. (N.M.) v. M. (N.S.), 2004 BCSC 346
- Marcovitz v. Bruker, 2005 QCCA 835, 2007 SCC 54
- K. (M.A.) v. B. (E.I.), 2008 NBQB 249 (French version A.K. c. I.B., 2008 NBBR 249), 2008 CarswellNB 671, 2008 CarswellNB 673
- Nasin v. Nasin, 2008 ABQB 219
- Khanis v. Noormohamed, 2009 CanLII 27829; 2011 ONCA 127
- Al-Mahamid v. Peart Estate, 2009 NSSC 285
- Ghaznavi v. Kashif-Ul-Haque, 2011 ONSC 4062
- Aziz v. Al-Masri, 2011 BCSC 985
- P. Fournier, “In the (Canadian) Shadow of Islamic Law: Translating Mahr as a Bargaining Endowment” (2006) 44 Osgoode Hall L.J. 660
- D. Gradley, “The Contract of Maher” (2009) 120 The Verdict 24
- M. S. B. Jaffer, “Vertical Mosaic from South Asian and Ismaili Muslim Point of View” Continuing Legal Education Family Law Conference. (Vancouver: CLE, 2001) at 13.3.1
- G.D. Sanagan. Sanagan's Encyclopedia of Words and Phrases, Legal Maxims, Canada, 5th ed, c. M, p. M-5
- Halsbury's Laws of Canada, Religious Institutions (2022 Reissue) -- on site at various Courthouse Libraries locations
- Y. Wahb, "Faith-Based Divorce Proceedings: alternative dispute resolutions for Canadian Muslims (2022) 40 Canadian Family Law Quarterly 109
- Family Law Sourcebook for British Columbia, Chapter 4, XIII (available in most courthouse libraries)