In a British Columbia Supreme Court decision of Zargarian-Tala v. Bayat-Mokhtari 2019 BCJ No., 497, the court stated that Iranian family law is founded in Islamic Shariah Law, and that the Iranian courts do not recognize the orders of Canadian courts in family matters. In the eyes of an Iranian court, notwithstanding the divorce order made in Canada, the parties are still married.
The court stated that there is a pronounced asymmetry of position as between husbands and wives. Within a marriage, wives owe obligations of obedience to their husbands. A husband may bring legal proceedings against a wife to sanction her for disobedience to her husband. Disobedience may include a refusal to follow the husband’s instructions, reside with the husband, satisfy his sexual needs, or physical or emotional unfaithfulness. Potential punishments for disobedience include fines, lashing, and capital punishment including death by stoning.
The court further stated that a husband whose wife has been disobedient may obtain permission from the court to take a second wife without obtaining a divorce.
What financial obligations does a husband owe to a wife?
In a British Columbia Supreme Court decision of Zargarian-Tala v. Bayat-Mokhtari 2019 BCJ No., 497 at paragraph 27, the court stated that the marriage contract may provide for a Dowry payment called “Mehr” or “Mehrieh” by the husband to the wife. The husband is subject to an ongoing obligation to pay financial support called “Nafagheh” for the duration of the marriage and for up to three months and ten days after separation. The husband may have other financial obligations including “Ojratealmesl,” a right to be paid according to custom and usage for work performed at the husband’s request, and “Jahizieh,” an obligation arising from wealth transferred from the wife’s family to the husband at the time of the marriage.
How does a Dowry payment in the form of a Mehrieh or Mehr function?
In an Iranian marriage certificate there includes a ‘marriage portion’ which addresses a dowry which may include a volume of the Holy Koran, a pane of mirror, a pair of candleholders, and gold coins that are payable to the wife upon her demand. This ‘marriage contract’ or marriage agreement is signed by the two spouses.
The gold coins may be numbers based on the numeric calculation of the wife’s name or date of birth. For example, 700 gold coins referenced in the marriage portion is approximately $276,000. Often, the amount of Mehrieh or Mehr depends on how much the man values the woman, and in recent times, it is more of a status symbol. This Dowry is to be paid by the husband to the wife in the event of a separation. Occasionally, in the marriage portion of the agreement, the husband may be subject to paying the gold coins upon the wife’s demand, prior to separation or divorce.
What is the purpose of a Dowry, Mehrieh or Mehr?
A Dowry in the form of a Mehrieh or Mehr is a customary tradition of Iranians for the husband to show his devotion and commitment to the marriage. The amount of Mehrieh or Mehr is traditionally negotiated by the families at the time of the couple’s engagement.
The Mehrieh or Mehr is a form of financial support for the wife upon separation. On occasion, the husband does not in fact have the financial means to pay the dowry upon marriage, which could cause problems when the parties separate. In the event of failing to pay the Mehrieh or Mehr upon separation, the former ex-husband may be jailed until the full amount is paid.
How is a Dowry, Mehrieh, or Mehr addressed in a family law proceeding?
In Islamic Shariah Law, the process of obtaining a divorce is to appear before the family court and to resolve legal issues for claims in respect of a Dowry, Mehrieh, or Mehr. The outcome is reflected in the court’s order and the divorce is granted by the court and registered in a Divorce Notary Public Office.
It is also easier for a husband to obtain a divorce than it is for a wife. The husband’s cooperation and consent are required. In a British Columbia Supreme Court decision of Fakhri v. Vafadar Moghadam 2012 BCJ No. 2954 at paragraph 34, the court stated that the wife cannot travel to Iran to retrieve the Mehrieh or Mehr because she would not be permitted to leave the country without the permission of her husband.
In a British Columbia Supreme Court decision of Zargarian-Tala v. Bayat-Mokhtari 2019 BCJ No., 497 at paragraphs 39 and 40, the court stated that there is an alternative procedure available where both parties are outside of Iran at the time of application, the parties already have a foreign divorce certificate, and the parties have agreed on a divorce and the disposition of the Mehr. In that case, the divorce can be obtained by registering documents at an Iranian embassy or, in North America, at an office maintained at Pakistan’s embassy in Washington, D.C.
The alternative procedure is only available where both parties are not present in Iran at the time the papers are submitted for registration. The registration procedure can take between 40 and 140 days. Iran tracks the movements of its citizens in and out of the country.
Is a Dowry, Mehrieh, or Mehr considered a family asset?
In a British Columbia Supreme Court decision of Amlani v. Hirani 2000 BCSC 1653, the court stated that a Mehrieh or Mehr is characterized as a separate property interest that exists independently of the matrimonial or family assets, and crystallizes upon the breakdown of the marriage. The claim for a Mehrieh or Mehr can be asked in addition to the matrimonial home or family assets. Therefore, the husband is placed in an unfair situation.
Is the Iranian Marriage Contract or Marriage Agreement enforceable?
In a British Columbia Supreme Court decision of Sharifpour v. Rostami 2018 BCJ No. 895, the court stated that the marriage contract was entered into only because the respondent was pregnant with the couples’ first child and that they wanted to be able to travel to Iran with their family and be treated as a married couple. The 2000 gold coins were an amount placed in the Iranian Marriage Contract purely for symbolic reasons so that the respondent would be considered worthy in the Iranian culture. The court put the Iranian Marriage Agreement aside because it was deemed unfair.
In addition, aside from the amount of Dowry that is considered by the court, the court may reflect on the following: if the agreement is understood and accepted as a legally binding document, length of marriage, purpose of the Dowry, acceptance of the amount of Dowry, etc.