Recent cases: legality of religious marriage
Below are two recent cases that examine whether a religious marriage is a legal marriage under civil law, in the context of the wife’s claim for an equalization of net family property. As you will see, the two cases – which present different facts – were decided very differently by the judges who heard them.
Iqbal v Shah 2021 ONSC 2407: Mr. Iqbal and Ms Shah entered into an Islamic religious marriage. When that relationship ended, Ms Shah remained in the home owned by Mr. Iqbal, which they had lived in together both before and after the religious marriage ceremony. Mr. Iqbal sought an order requiring her to vacate the property, claiming she was a trespasser. Ms Shah responded by making a claim for possession under the Family Law Act, asserting that she was Mr. Iqbal’s spouse.
Both parties had been married previously. Mr. Iqbal had received a divorce order, but not until after the religious marriage ceremony. Ms Shah had received a religious divorce from her first husband but did not have a civil divorce.
In the short time the parties lived together after the religious ceremony, Mr. Shah was arrested and charged for assaulting Ms Shah, and did not return to their home after that date other than to remove some personal items.
The evidence about whether the parties intended the religious ceremony to be a legal marriage under the laws of Ontario and Canada was mixed. The Imam who performed the ceremony testified that he conducted the ceremony even though there was no marriage licence, on the understanding that it was a religious ceremony only, and that he did not complete the paperwork required for the ceremony to conform with Ontario’s legal requirements. The parties did not sign an Islamic marriage contract or agreement, and Mr. Iqbal did not give Ms Shah a mahr. Expert evidence was split as to whether or not the ceremony met the requirements under Ontario law for a civil marriage.
Ontario law does not permit people to marry if they are “under a legal disqualification” to do so. While there is case law that has found a marriage to be legal even if the ceremony was performed without a marriage licence, that did not extend to marriages where the people were under a legal disqualification to marry.
As Justice Emery wrote about Mr. Iqbar and Ms Shah: “they remained married to other persons and were not legally able to marry each other until both divorces were granted,” meaning they were legally disqualified from marrying when they did.
Justice Emery found that Ms Shah was not a spouse under the Family Law Act and so did not have a right to remain in the home. He also found that she had been unjustly enriched because Mr. Iqbar had paid for utilities and internet services while she remained in the home and ordered her to pay this amount (approximately $5,500) ro Mr. Shah. He also ordered her to clean and restore the property to the condition it was prior to the separation.
Lalonde v Agha 2021 ONCA 651: Ms Lalonde and Mr. Agha were married in Tennessee in 1998 in an Islamic religious ceremony. Mr. Agha believed that this was necessary for the parties to engage in sexual relations. The mosque’s imam performed the ceremony and signed the marriage certificate. However, no marriage licence was issued, which was required under Tennessee law.
The parties both testified that they did not know this was necessary. They also both testified that they considered themselves to be legally married. They lived in Ontario as husband and wife for 18 years, had three children, purchased a home and recognized themselves as married to each other on government and other official documents. Mr. Agha only took the position that they were not married when Ms Lalonde made a claim for equalization of net family property.
The trial judge determined that the religious ceremony did not create a valid marriage under Tennessee law because there was no marriage licence, but found that the applicable law was Ontario’s Marriage Act as the parties had spent their entire married life in Ontario.
His decision was that they met the requirements for a valid marriage under section 31 of the Marriage Act because:
- The marriage was solemnized in good faith
- The parties intended to follow the Marriage Act because Mr. Agha wanted to be legally married
- Neither party was under a legal disqualification to marry
- They lived together and cohabited as a married couple after the religious ceremony
This meant that Ms Lalonde was a spouse under the Family Law Act and so could seek equalization of net family property.
Mr. Agha appealed this decision to Ontario’s Court of Appeal, which upheld the trial court decision.