Determining the Validity Of A Foreign Marriage Contract
June 25, 2020
Marriage contracts (and domestic agreements), while not exciting to think about when starting a relationship, can be extremely useful in the event that the relationship breaks down. In addition to setting expectations and obligations at the outset of a relationship, a marriage contract can also help determine what happens to assets after a relationship is over. This is particularly useful if the parties in the relationship want their assets dealt with in a way that is contrary to the Divorce Act (for married couples), the Family Property Act, and the Family Law Act. But as we are about to see, not all marriage contracts are created equal. In a recent decision from the Court of Queen’s Bench of Alberta, the validity of a marriage contract from Pakistan was challenged in Canada.
The parties were married in Pakistan in 2010 or 2011. They had two children while married, and separated while living in Calgary in 2017. They moved to Canada two to three years after being married. When the wife attempted to begin divorce proceedings in March 2018, the husband claimed he had already received a Divorce Certificate from Pakistan. The wife was not aware of this.
One of the disputes the Court had to determine was whether their Pakistani Nikah/Mahr (“the Nikah”) marriage contract should be enforced in Canada. The Nikah was signed before the couple’s marriage ceremony in the presence of witnesses. The Court described it as a standard fill-in-the-blanks boilerplate agreement which said little about the distribution of matrimonial property in the event that the marriage was to break down. The only thing it provided for was the payment of a dowry amount. However, there was no evidence as to whether this had been paid.
Is the Nikah Valid?
Section 38 of Alberta’s Family Property Act (the “Act“) outlines the requirements for a marriage contract to be valid. A contract is enforceable if each party to the agreement has acknowledged, in writing:
- That the party is aware of the nature and the effect of the agreement,
- That the party is aware of the possible future claims to property the party may have under this Act and the party intends to give up these claims to the extent necessary to give effect to the agreement, and
- That the party is executing the agreement freely and voluntarily without any compulsion on the part of the other party.
In addition, the Act states the acknowledgment described above must be made before a lawyer other than the lawyer acting for the other party.
In this case, the wife had no lawyer. She told the Court that she did not understand the details of the Nikah, and was simply told to sign it. As a result, the Court determined the Nikah was not a valid marriage contract under the Act. As a result, the couple’s property was to be distributed according to the provisions contained within the Act rather than the terms contained within the Nikah.
The family law lawyers at HMC Lawyers are experienced in reviewing, advising on, and drafting all types of family agreements. We will ensure you are aware of your rights and obligations and will help you negotiate a mutually beneficial agreement with your partner. If you require independent legal advice regarding an already-drafted agreement, we will review it with you and ensure you understand your rights and liabilities in full before you sign. For advice about a variety of family law agreements, contact us online or call 1-800-480-3534.