Nasin v. Nasin, (2008) 443 A.R. 298 (QB)

• Judge: Moen, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Friday April 04, 2008
• Citations: (2008), 443 A.R. 298 (QB);2008 ABQB 219

Nasin v. Nasin (2008), 443 A.R. 298 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.103

Shoaib Ahmad Nasin (plaintiff) v. Yegana Nasin (defendant)

(4803 139361; 2008 ABQB 219)

Indexed As: Nasin v. Nasin

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

April 4, 2008.

Summary:

Spouses separated after a nine month marriage. At issue was the division of marital property.

The Alberta Court of Queen's Bench determined the issues.

Family Law - Topic 505

Contracts in contemplation of marriage - General - Validity of - Spouses separated after a nine month marriage - They were married according to Muslim culture - According to Muslim tradition, just before the marriage ceremony took place, they entered into a form of pre-nuptial agreement called the Mahr in which the husband agreed to pay the wife $10,000 in the event of the failure of their marriage - The Alberta Court of Queen's Bench held that the Mahr was a contract - While it was not in writing, it was an exchange of promises intended by the parties to be binding - As to the religious aspects of the Mahr, if parties entered into pre-nuptial agreements in a religious context, they would be enforced if they met the requirements under the Matrimonial Property Act and the courts did not find the contracts invalid for other reasons - However, the Mahr met none of the requirements of s. 38 of the Act - It was not in writing - There was no certificate of acknowledgement - The spouses did not receive independent legal advice - Even though the Mahr was a pre-nuptial contract, it was unenforceable - See paragraphs 16 to 25.

Cases Noticed:

Nathoo v. Nathoo, [1996] B.C.T.C. Uned. H25 (S.C.), refd to. [para. 9].

Amlani v. Hirani, [2000] B.C.T.C. 1023; 194 D.L.R.(4th) 543; 2000 BCSC 1653, refd to. [para. 9].

N.M.M. v. N.S.M., [2004] B.C.T.C. 346; 26 B.C.L.R.(4th) 80; 2004 BCSC 346, refd to. [para. 9].

Kaddoura v. Hammoud (1998), 83 O.T.C. 30; 168 D.L.R.(4th) 503 (Gen. Div.), refd to. [para. 11].

Khan v. Khan, 2005 ONCJ 155, refd to. [para. 11].

Bruker v. Marcovitz (2007), 370 N.R. 1 (S.C.C.), refd to. [para. 12].

Hodgson v. Hodgson (2005) 361 A.R. 190; 339 W.A.C. 190; 2005 ABCA 13, refd to. [para. 26].

Harrower v. Harrower (1989), 97 A.R. 141 (C.A.), refd to. [para. 45].

Stewart v. Stewart (1992), 130 A.R. 293 (Q.B.), refd to. [para. 45].

Metz v. Metz (2004), 368 A.R. 35; 34 Alta. L.R.(4th) 252; 2004 ABQB 528, refd to. [para. 55].

Wright-Watts v. Watts (2005), 387 A.R. 293; 2005 ABQB 708, refd to. [para. 56].

Tocker v. Tocker et al. (2000), 273 A.R. 257; 2000 ABQB 582, refd to. [para. 56].

Potter v. Potter (2001), 300 A.R. 124; 2001 ABQB 810, refd to. [para. 56].

S.W. v. J.W., [2005] A.R. Uned. 949; 26 R.F.L.(6th) 168; 2005 ABQB 728, refd to. [para. 97].

Wallat v. Marshall, [2005] A.R. Uned. 469; 2005 ABQB 426, refd to. [para. 99].

Counsel:

David Patterson (Patterson Family Law Office), for the plaintiff;

Richard Smith (McGregor Stillman LLP), for the defendant.

This case was heard on September 11-14, 2007, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 4, 2008.