Supreme Court: Polygamous marriages not valid under Irish law

About this case:

• Judgment:
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Delivering the judgment of the seven-judge Court, Ms Justice Iseult O’Malley stated that Irish law did not recognise the validity of the second marriage.

Background

While domiciled in Lebanon, “H.A.H” contracted two marriages – the first in 1975 and the second in 1988.

The Court heard that husband has a subsisting relationship with each wife and there are children of both marriages, children who now reside in the State.

As Lebanese Muslims, both marriage ceremonies were valid under Lebanese law and Shari’ah law.

After arriving in Ireland as an asylum seeker in 1998, the husband was granted Irish citizenship in 2002.

The Court heard that the second wife had been admitted to the state in 2001 expressly on the basis that she was the wide of the husband; however an application for the first wife was not made until 2002.

The question about the first marriage arose because the Minister refused to admit the first wife into the state under the terms of the Refugee Act 1996.

In the proceedings before the Supreme Court, the husband sought a declaration pursuant to s.29 of the Family Law Act 1995 that the his marriage to the first wife was valid on the date of its inception in 1975.

Position of the Attorney General

The Attorney General argued that, notwithstanding the decision of the Minister to admit the second wife as the spouse of the husband, and notwithstanding that it was the Minister’s proposal in the settlement of the judicial review proceedings that caused the husband to seek a declaration as to the validity of the first marriage, that neither marriage should be recognised.

The AG accepted that the marriages were valid under the law of the jurisdiction in which they were contracted, which was the law of the parties’ domicile, and that the parties had capacity under that law.

The marriages would therefore qualify for recognition under standard principles of private international law unless that result is prohibited by considerations of public policy – in this regard, the AG contended that Irish public policy was opposed to the attachment of legal consequence in this State to polygamous marriages.

Public policy

The basic rule for the recognition of a foreign marriage is that Irish law will recognise a marriage contracted in a foreign country which complies with the laws of that country – the lex loci celebrationis – unless it conflicts with fundamental requirements relating to validity based on the domicile of the parties or public policy in our law.

Giving the unanimous judgment of the seven-judge Court, Ms Justice O’Malley stated that public policy was in general a matter for the Oireachtas; however, the recognition of foreign marriages has rarely been the subject of legislation in this State and any issue in relation thereto has historically fallen to the courts to determine in accordance with the rules of private international law.

Accordingly, it was emphasised that while the Supreme Court had to deal with the questions in the present case, this would in not way interfere with the right of the legislature to enact measures on the issue as it sees fit subject only to the requirements of the Constitution.

Justice O’Malley added that any decision in this area, touching upon fundamental aspects of people’s lives, was likely to reach a conclusion capable of causing distress and unfairness to some private individuals and their families.

High Court

In the High Court proceedings in 2010, the husband’s application under the Family Law Act 1995 was refused - the trial judge concluded that to interpret the word “marriage” as including polygamous marriage was simply not compatible with the Irish constitutional understanding of marriage.

The trial judge held that the basic concept of marriage as enshrined in the 1937 Constitution had remained unchanged, despite the removal of the prohibition of divorce.

On that basis, it was not possible to grant a declaration that the marriage was valid in the eyes of Irish law

The Supreme Court

The question for the seven-judge Supreme Court to determine was whether Irish law w0uld require or prohibit the recognition of either or both of the appellant’s two marriages; as such, the judgment had to consider the application of the rules relating to the conflict of laws and the nature of Irish public policy in relation to polygamous marriages.

Justice O’Malley held that Hyde v. Hyde LR 1 P. & D. 130 could no longer be considered as defining marriage for the purposes of Irish law.

Similarly, some of the more recent authorities from the 1980s and 1990s have been overtaken by the amendments to the Constitution (e.g. Conlon v. Mohamed I.L.R.M. 523)

The rules of private international law require the State to recognise a marriage validly contracted under a foreign system of law unless such recognition is prohibited by our public policy.

The Constitution and Irish public policy clearly envisage a marriage as being a union between two people, based on the principles of equality and mutual commitment – there is therefore no bar to the recognition of a marriage that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage.

According to this understanding, Justice O’Malley held that recognition should be afforded as of the date of inception of the marriage, and should not be withdrawn in the event of a second or subsequent marriage by the husband.

As such, Justice O’Malley allowed the appeal and granted the declaration sought – i.e. the marriage of the husband with the first wife was valid as of the date of its inception.

The Court held that Irish law did not recognise the validity of a second or subsequent marriage while the first marriage is in being.

Notwithstanding this finding, both women now have the right to remain.