In Canada, it is very common for couples getting married, or even moving in together, to create a contract setting out how their property will be treated should they split in the future. So long as the contract meets the standards for a valid contract in each province, most would be enforceable across provincial borders should a couple marry in one jurisdiction and separate in another. However, what effect will be given to marriage contracts created in other countries, when a couple later moves to Canada and separates there? A recent Alberta decision examined this question with respect to a wedding contract executed in Pakistan at the time of the marriage.

Married in Pakistan, Separated in Canada

The couple in question were married in Pakistan and subsequently had two children. At the time of the marriage, the couple entered into a wedding contract called a Nikah or Mahr, referred to hereafter as the Nikah. In this case, the Nikah was comprised of boilerplate language with blanks that were completed at the time the document was signed. The contract provided for a dowry of 100,000 Rupees to be paid at the time of the marriage. The document also contained a place to list the amount to be paid upon a breakdown of the marriage, which had been left blank. Based on testimony from the couple, the document was signed before the parents of both the wife and husband.

The husband maintained that the Nikah should be upheld in Canada, and determine the couple’s division of their property rather than the Matrimonial Property Act (the “Act”). The wife, on the other hand, submitted that it should not override Alberta’s maritial property legislation.

After examining the Nikah, the judge held that the document could not be enforced as a valid marriage contract, for the following reasons:

  1. There was a lack of evidence that the contract involved the three factors of a legal contract in Canada: an offer, an acceptance and consideration; and
  2. The relevant sections of the Act could only be overridden by “a subsisting written agreement…that is enforceable under section 38 and that provides for the status, ownership and division of that property”, which the Nikah was not.

Section 38 of the Matrimonial Property Act

Section 38 states that a marriage contract is only enforceable if each spouse or each party acknowledges, in writing, apart from the other spouse or person:

(a) that the spouse or person is aware of the nature and the effect of the agreement,

(b) that the spouse or person is aware of the possible future claims to property the spouse or person may have under this Act and that the spouse or person intends to give up these claims to the extent necessary to give effect to the agreement, and

(c) that the spouse or person is executing the agreement freely and voluntarily without any compulsion on the part of the other spouse or person.

At the time of the marriage, the wife claimed she was simply instructed to sign the agreement and was not made aware of how it could impact her down the road. Further, there was no certificate of acknowledgment signed by the parties in satisfaction of s. 38 of the Act. Further, the wife did not have an opportunity to negotiate the terms of the Nikah, nor did she receive independent legal advice prior to signing. Therefore, the Nikah could not override the property rights set out under the Act.

Not all marriage contracts are created equal, and depending on the jurisdiction, they may or may not be upheld in a Canadian court. Based on the decision above, the determining factor will likely be whether the contract is valid under the respective provincial act which oversees the division of property upon the breakdown of a marriage. If the foreign contract meets those requirements, it will likely be enforced. If parties have a foreign marriage contract and are unsure whether it will hold up under the scrutiny of a Canadian court, they should seek the advice of an experienced family law lawyer. If there is concern it may not be enforceable, a lawyer can also assist the couple in creating a new agreement that satisfies Canadian statutory requirements.

Mincher Koeman has assisted countless clients with the negotiation and creation of a separation or marriage agreement. Whether you are working out the details with a partner after a split or putting a plan in place as a precautionary measure, we will advise you of your rights and responsibilities and ensure that your interests are protected. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or contacting us online.

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