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Iranian family law is unlike the Canadian family law in many ways. While Canada recognizes most foreign divorces, the Iranian government does not. What does this mean for Iranian-Canadian spouses or non-Iranian-national females married to an Iranian-Canadian male, who obtain a divorce in Canada? It means that such couples will be considered married under the Iranian law and the Canadian divorce certificate cannot be used officially in Iran. Hence, Iranian-Canadians or non-Iranian females married to an Iranian man must first authenticate their Canadian divorce certificate by Foreign Affairs and International Trade Canada in Ottawa and then have it properly sanctioned by an Iranian court of justice.
Individuals must be aware that even if the divorce certificate is authenticated properly, the Iranian court of justice may still refuse to sanction it. Therefore, the parties would be still married under Iranian laws.
Do you really need to have your Canadian divorce sanctioned in Iran? It may not be that important to those former spouses who never intend to return to Iran in the future. However, it is important to understand the ramifications of not sanctioning your Canadian divorce by an Iranian court.
Under the Iranian laws, a married woman requires her husband’s consent to leave the country. If your divorce is not sanctioned by an Iranian court and you return to Iran, your former husband may be able to have your passport confiscated by the Iranian authorities. Furthermore, the sole custody of children is automatically given to their father under the Iranian divorce laws. A former wife of an Iranian national, travelling to Iran with her children and without a sanctioned divorce, would require her former husband’s consent to remove the children from Iran. Therefore, a Canadian divorce certificate alone will not be enough to remove a former wife’s restrictions for travelling outside of Iran.
Marital property rights under Iranian laws are also very different than the Canadian laws. In Ontario, spouses are entitled to an equal share of the net family property and an equal right of possession of the matrimonial home. In Iran, there are no laws regarding division of property. The person whose name is on the title deed will remain the owner of that property. The only money that must be paid to a former wife is that of the amount of mahr (that is, the gift a husband makes to his wife according to their marriage contract, payable upon the conclusion of the marriage). Under section 4(1) of the Ontario Family Law Act, “net family property” includes all property a spouse owns. “All property” includes property owned in other jurisdictions. If an Iranian-Canadian obtains a Canadian divorce and is entitled to a portion of the value of the property his or her former spouse owns in Iran, that individual may not be able to do anything about it since the Canadian divorce and any subsequent court orders are not recognized under Iranian law.
Consequently, it may be prudent to inform the Canadian judge who is granting your divorce about any properties owned by your spouse in Iran that could be categorized as “family property”. After explaining the difficulties surrounding using a Canadian divorce officially in Iran, one may ask for an unequal division of the net family property in exchange for foregoing of any claims to the property in Iran. This decision is at the discretion of the judge and would be dependent on the facts of each case and credibility of the documents provided.
ELLA AIASEH B.A., J.D.
Phone: (416) 238-5100
Fax: (416) 900-1090
The above information and commentary on Ontario laws and court cases are intended for general discussions and information. They are not legal advice and should not be relied upon as such. If you require legal advice please contact email@example.com or (416) 238-5100.