Enforceability of Religious-Based Contracts in Canada

Understanding Religious-Based Contracts in Alberta and Canada

Religious-based contracts, such as mahr agreements in Islamic marriages and a Ketubah as part of Jewish marriages, are agreements that incorporate religious principles and obligations. These contracts can cover various aspects, including marriage, divorce, and financial arrangements. They often serve to provide financial security and outline the responsibilities of the parties involved. This article explores the enforceability of religious-based contracts in Canada, focusing on relevant case law and legal principles.

Examples of Religious-Based Contracts

Mahr 

Mahr is an essential component of a Muslim marriage contract and is deeply rooted in Islamic Tradition. According to Islamic tradition, a blessed marital union, known in Islam as “nikah,” has a few essential components, without which it is not considered complete. One of these is the payment of the “mahr” or dowry, which is an amount of wealth that the husband pays to his wife.

Mahr serves as a financial security for the wife and is considered to be the right of the wife. It can be categorized into two types: prompt mahr (muajjal), paid at the time of marriage, and deferred mahr (muwajjal), payable upon divorce or the husband’s death.

Mahr is significant as it establishes the bride’s financial independence, provides her with security in the marriage, and symbolizes a husband’s obligation to provide for their wife’s needs after the marriage financially.

Ketubah

A ketubah is a fundamental element of a Jewish marriage contract, designed to protect the wife’s rights and outline the husband’s obligations. The ketubah is a legal document that details the husband’s responsibilities, including providing food, clothing, and conjugal rights, as well as financial support in the event of divorce or his death.

The ketubah is traditionally written in Aramaic, the legal language of Jewish law, and is signed by witnesses to ensure its validity. The ketubah holds significant cultural and religious value, symbolizing the husband’s commitment to his wife’s well-being and the sanctity of the marriage.

Enforceability in Canadian Courts

Canadian courts have had varied responses to the enforcement of religious-based contracts. Some courts have treated these agreements as domestic contracts, while others have viewed them as religious documents and thus unenforceable. However, a growing body of case law supports the enforceability of religious-based contracts when they meet certain legal standards.

Bruker v Marcovitz, 2007 SCC 54

In 2007, the Supreme Court of Canada (“SCC”) ruled on the case of Bruker v Marcovitz, with the majority position being delivered by the Honourable Justice Abella. This decision is a landmark case that addressed the enforceability of religious-based contracts within the Canadian legal framework.

The case involved a Jewish couple who had agreed, as part of their civil divorce, to obtain a “get” (a Jewish religious divorce). Mr. Marcovitz failed to provide the get for 15 years, prompting Ms. Bruker to seek damages for breach of contract. In this case, the SCC was asked to consider the circumstances of the get; in doing so, the SCC reflected on the legal nature of such religious obligations and quasi-contractual traditions in Canada.

The SCC’s majority position outlined that the religious aspect of a contractual agreement does not preclude its judicial consideration and enforceability, provided the agreement otherwise satisfies the requirements to make it a valid and legally binding contract. This includes that the object of the agreement must not be prohibited by law or contrary to public order. According to Abella J, “an agreement between spouses to take the necessary steps to permit each other to remarry in accordance with their own religions constitutes a valid and binding contractual obligation under Quebec law”.

This decision highlighted that religious obligations could be enforced in civil courts if they satisfied the legal standards for contracts, thereby bridging the gap between religious practices and secular law.

Nasin v Nasin, 2008 ABQB 219 

In Nasin v Nasin, the Alberta Court of Queen’s Bench (as it then was) examined the enforceability of a mahr agreement as a form of prenuptial contract in Islamic marriages. The case involved a couple who had separated after a nine-month marriage, with the husband agreeing to pay the wife $10,000 as part of the mahr in the event of a failure of their marriage. The court held that while the mahr was intended to be a binding contract, it did not meet the specific requirements under Alberta’s Matrimonial Property Act (now the Family Property Act), such as being in writing and acknowledged by both parties. Consequently, the mahr, in this case, was deemed unenforceable.

This case highlighted the importance of ensuring that religious-based contracts comply with provincial legal standards to be considered valid and enforceable by Canadian courts.

Legal Standards for Enforceability

In Alberta, the validity and enforceability of religious-based contracts depend on whether they meet the criteria for a valid contract under provincial law. Courts in Alberta, and more broadly in Canada, have recognized that these agreements can be enforceable if they fulfill the requirements of a civil contract. This means that the contract must involve an offer, acceptance, and consideration, and both parties must understand and agree to the terms freely and voluntarily.

For a religious-based contract to be enforceable, it must also comply with specific provisions under Alberta’s Family Property Act. Section 38 of the Family Property Act requires that any marriage contract, including a mahr, must be acknowledged in writing by both parties, indicating that they are aware of the nature and effect of the agreement and that they are executing it without any compulsion.

If these conditions are met, the contract can be treated like any other contractual obligation and enforced by the courts.

However, if the contract does not meet these legal standards, it may not be enforceable. For example, if there is insufficient evidence of mutual consent or if the contract was not executed properly, the courts may not uphold it. Therefore, it is crucial for individuals entering into a religious-based agreement to ensure that it is drafted clearly and meets all legal requirements to be considered valid and enforceable in Alberta.

Conclusion

The enforceability of religious-based contracts in Canada depends on their compliance with the legal standards for domestic contracts. While Canadian courts have shown a willingness to enforce these agreements, it is crucial for parties to ensure that their contracts are properly drafted and executed. By meeting the necessary legal requirements, religious-based contracts can provide the intended financial security and be upheld in Canadian courts.

If you have concerns about the enforceability of your religious-based agreements, we encourage you to contact us for more information. Our team of legal professionals is experienced in family law and religious contracts, and we are here to help you navigate these complex issues. Reach out to us for personalized advice and assistance.