We tend not to encroach into Ireland, but we thought it worth reporting a recent case on the status in Irish law of a polygamous marriage contracted validly in Lebanon.

The background

HAH, the husband, was a recognised refugee and naturalised Irish citizen who had contracted marriages with two women in Lebanon in accordance with Lebanese law. He sought a declaration pursuant to s 29 of the Family Law Act, 1995 that his marriage to the respondent SAA (“the first wife”) was valid at the date of its inception in 1975. There was no doubt but that the marriage was valid in terms of Lebanese law, but the real issue between the parties was whether the marriage had the effect in Irish law of conferring on the parties to it the rights arising from the status of husband and wife. So the question before the Supreme Court of Ireland in HAH v SAA & Ors [2017] IESC 40 was whether Irish law either required or prohibited the recognition of either or both of the appellant’s two marriages [1].

The husband had come to Ireland as an asylum seeker in 1998, was recognised as a refugee in 2000 and therefore became entitled under the Refugee Act 1996 to apply be joined by members of his family, including his “spouse”. He applied initially in respect of his second wife, SAH, whom he married in 1988. She was admitted in 2001 with a number of minor children, “expressly on the basis that she was the wife of the husband” and is now an Irish citizen. She has supported the claim of the first wife to be recognised as such, while also maintaining her own claim that she is validly married [7]. In 2002 the husband was granted Irish citizenship and applied to have his first wife admitted, the explanation for the later application being that she had been unable to travel earlier [7].

The Minister refused to admit the first wife under the terms of the Refugee Act 1996 and the husband then instituted judicial review proceedings to quash that refusal [9]. In 2006, the first wife arrived as an asylum seeker; her application was ultimately unsuccessful but she was granted permission to remain. Counsel for the Attorney General told the Court that it was unlikely that any step would be taken to remove her at this stage, no matter what the outcome of the current proceedings [10]. There were children of each marriage resident in Ireland, some of whom were recognised refugees and others who had been admitted on the basis of family reunification [11].

The law

The basic rule is that Irish law will recognise a marriage contracted in a foreign country that complies with the laws of that country – the lex loci celebrationis – unless it conflicts with fundamental requirements of Irish law relating to validity based on the domicile of the parties or public policy: in particular, the capacity to marry [2].

The Refugee Act 1996 entitles a recognised refugee to be joined by family members, including the refugee’s spouse. The Act requires, in the case of a spouse, that the marriage be subsisting as of the date of the application [13]. S 29 Family Law Act 1995 provides for the making, on the application of a spouse or any other person with sufficient interest, of one or more of a range of five declarations in relation to a marriage:

• that the marriage was at its inception a valid marriage;
• that the marriage subsisted on a specified date;
• that the marriage did not subsist on a specified date;
• that a divorce, annulment or separation obtained abroad is entitled to recognition in the State; and/or
• that such divorce, annulment or separation is not entitled to recognition [14].

A declaration under s 29 may be granted only if one or both of the spouses concerned is domiciled in Ireland or ordinarily resident for at least a year as of the date of the application. If granted, the declaration is binding on the parties and, if the Attorney General is added as a party, on the State [15].

The judgment

Delivering the principal judgment, O’Malley J examined in some detail the dicta of Lord Penzance in Hyde v Hyde [1866] LR 1 P & D 130, who had declared the basic principle that “marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others” [30]. Lord Penzance had held that the matrimonial law of England was adapted to Christian marriage and was wholly inapplicable to polygamy, that the remedies provided by the law corresponded to the rights and duties created by the marriage contract and could not be applied to a contract of such a different nature which did not confer those rights and duties and that there was, therefore, no law in England adjusted to the requirements of a polygamous marriage [33]. She noted, however, at [41] that “polygamous marriages are now recognised under English law for most purposes. The English rules of private international law will recognise a marriage celebrated in a foreign country under a system of law permitting polygamy”.

The basic rule was that a foreign marriage would be recognised in Ireland if it complied with the relevant foreign law, subject to the exception that it would not be recognised if it offended against public policy [96]. Hyde v Hyde could no longer be considered as defining marriage for the purposes of Irish law: its underlying assumptions and the constituent elements of its definition of marriage “have been cut away to the extent that it serves no useful purpose” [97].

For the same reason, some of the more recent authorities from the 1980s and 1990s had been overtaken by the amendments to the Constitution. The combination of the introduction of no-fault divorce and, in particular, the amendment of the Constitution providing for the introduction of same-sex marriage had resulted in a legal institution of marriage that could no longer be described in terms of traditional Christian doctrine [98], though the constitutional pledge to guard the institution of marriage with special care remained in place and “must be accorded full respect” [99].

As to the constitutional position:

“The Thirty-fourth Amendment, when introducing the right to same-sex marriage, clearly did not create a separate version of marriage for same-sex couples. It is also clear that it did not create a new version of marriage for all couples. It enabled the inclusion of same-sex couples into an already existing structure. Looking at the plain wording, the amendment achieved this on the basis of a core assumption that a marriage, before and after the amendment, is a union between two people”[100].

“In my view the defining characteristic of marriage as envisaged by the Constitution in this era is that it entails the voluntary entry into mutual personal and legal commitments on the basis of an equal partnership between two persons, both of whom possess capacity to enter into such commitments, in accordance with the requirements laid down by law … All of the remedies for marital breakdown, and all of the legal consequences of the status of marriage in the fields of taxation, social welfare and succession law flow from that equality and mutuality of commitment [101]. If that view of marriage is correct, then that is the model to be guarded, as the Constitution requires, with special care. The question then is whether that obligation compels the courts to refuse recognition to either potentially or actually polygamous marriages” [102].

The arguments of principle and policy against granting recognition to a potentially polygamous marriage, as set out in Hyde v Hyde, had lost most, if not all, of their relevance in the modern era [103]. Under the rules of private international law, recognition of a marriage entered into in compliance with a foreign legal system should be refused only if refusal is required for the protection of the values and principles represented in Irish public policy. The question then was whether it was “substantially incontestable” that discernible harm would be caused to the public or that a threat would be posed to the institution of marriage as contemplated by the Constitution as would require the refusal of recognition to potentially or actually polygamous marriages [104].

“In my view there is no such harm or threat in the case of a couple living in this State in a monogamous relationship, arising purely out of the fact that they married under a system of law that permits polygamy. There is no principle at stake here, no damage to the core values of our constitutional concept of marriage, that could be said to require the withholding of recognition. Nor can I see that there is any practical difficulty in applying the current range of legislation, either civil or criminal, to a couple living in the State in a marriage that is de facto monogamous. Indeed, it seems apparent that State agencies in practice treat such marriages as valid save where doubts arise” [105].

Moreover, there were significant practical policy disadvantages in denying recognition to such marriages. According to the last census figures, there were over 60,000 Muslims in Ireland and it could be presumed that many of their marriages took place under a law that permits polygamy. A refusal to recognise the validity of potentially polygamous marriages that were de facto monogamous would be likely to cause distress, disruption and confusion to a significant number in the Irish community: “I cannot see that there is a corresponding gain in terms of the protection of marriage” [106]. There were also potential issues in relation to parental rights, succession, taxation and social welfare entitlements [107].

She concluded that a marriage that was potentially polygamous only was capable of being recognised as legally valid in Ireland and that it should be recognised as of the date of inception [109]. It was also her view that the recognition afforded to a potentially polygamous marriage should not be withdrawn if the husband contracts a further marriage [110 & 111] because to do so “would interfere unnecessarily with the rights of at least some of the individuals concerned and would go further than necessary for the protection of the institution of marriage. It is not required by public policy” [111].

As to the status of the second marriage, the institution of polygamy as such was not contemplated by the Constitution [113] and recognition of an actually polygamous marriage would be contrary to a fundamental constitutional principle and therefore contrary to public policy [115]. In conclusion:

“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. In my view, for the reasons set out in this judgment, 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. 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. I would therefore allow this appeal and grant the declaration sought – that is, that the marriage of the husband with the first wife was valid as of the date of its inception” [120].

So the first marriage was valid under Irish law but the second one was not: however:

“In this judgment I have also expressed the view that Irish law does not recognise the validity of a second or subsequent marriage while the first marriage is in being. However, this does not necessarily mean that such a marriage can never have legal consequences” [121: emphasis added].