If you are from the Muslim world and are married you invariably have a Nikah-nama. A Nikah-nama simply put is an Islamic prenuptial agreement which is undertaken before most Islamic marriages are performed. In Arabic it is called katb el-kitab, but for most of the South Asian world this contract is recognized by its Urdu name, Nikah-nama.
Increasingly lawyers are faced with the arduous task of explaining to their clients that the method by which Islamic prenuptial agreements are created do not pass the standards of Ontario’s laws. Clients will attend a lawyer’s office asking the simple question, “Why does my Nikah-nama not eliminate my spouse’s ability to apply for spousal support?” A fair question, as the Nikah-nama is a prenuptial agreement speaking to the support of the spouse if a breakdown in the relationship should occur, and thus should in theory eliminate the party’s ability to apply for spousal support.
There are high standards for the marriage contracts in Ontario that are rarely observed when signing Nikah-nama’s. While the Nikah-nama includes the most basic elements of a contract being in writing, signed by both parties and witnessed, the contract still has numerous flaws. For example the vast majority of the Nikah-nama’s drafted today have the following problems:
1. Do not provide a reasonable amount of support in relation to the party’s ability to pay.
2. Do not attach financial disclosure revealing the parties’ net worth.
3. Do not include the wife freely and voluntarily in the discussion of either the amount of support, or in drafting the agreement.
4. Although prior to the agreement being signed an individual is designated to provide advice to the wife and husband on the merits of the agreement, neither party is provided with independent legal advice from individuals with a legal background, and thus, are not aware of the rights that they are waiving.
In Ontario domestic contracts waiving spousal support are open to attack. The law provides that:
1. The court may set aside a term in an agreement waiving spousal support and may determine and order support; and,
2. A court may waive a provision for support or the waiver of the right to support if such provisions result in unconscionable circumstances.
One must remember that the objective of an order for spousal support is to fairly assist the spouse to become able to contribute to his or her own support, and also relieve any financial hardship that might occur as a result of the separation of the parties.
We must remember that in Islam marriages are considered social agreements and a legal contract. Nikah-namas are not a thing of the past; they will continue to be issued in every Islamic marriage. With this in mind it stands to reason that a lawyer should be involved in this process on both sides so that the negotiation of the amount of spousal support is a fair and equitable one in relation to the parties involved and their economic abilities. Further the finances of the parties should be fully disclosed. This will not guarantee that the agreement will pass the penetrating eyes of a Canadian court judge. It will however, strengthen the legitimacy of such an agreement in ensuring that the parties have received competent independent legal advice, are freely and voluntarily signing such agreements, and have provided full and frank disclosure of their assets with an understanding of their rights as accorded under the laws of Ontario.
In my view a new approach is sorely required to protect the rights of both husband and wife, and bring the Nikah-nama from a ceremonial piece of paper to what it was intended to be, a legally binding agreement that appropriately protects the parties during and at the conclusion of a marriage.
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