H.A.H -v- S.A.A. & ors,  IESC 40 (2017)
|Party Name:||H.A.H, S.A.A. & ors|
|Docket Number:||128, 130 & 135/2011|
THE SUPREME COURT
IN THE MATTER OF THE FAMILY LAW ACT, 1995[Supreme Court Appeal No. 128/2011; 130/2011; 135/2011]
THE ATTORNEY GENERAL1ST NOTICE PARTYAND
BY ORDER OF THE COURT
S.A.H.2ND NOTICE PARTY
JUDGMENT of Ms. Justice O’Malley delivered the 15th day of June 2017.
In this case this Court is asked, apparently for the first time, to give full consideration to the legal consequences within this State of a polygamous marriage entered into in another country. The appellant (“the husband”) has contracted marriage with two women, in a manner permissible according to the law of the State of their domicile. In form, what is sought is a declaration pursuant to s.29 of the Family Law Act, 1995 that the husband’s marriage to the respondent S.A.A. (“the first wife”) was valid on the date of its inception on the 3rd January, 1975. However, the case raises questions going well beyond what might appear to be the technical proofs for such a declaration. There is no doubt but that the marriage was valid in terms of compliance with the law of the State in which it took place. That does not of itself resolve the real issue between the parties, which is whether the marriage has the effect in Irish law of conferring on the parties to it the rights rising from the status of husband and wife. The question for the Court to determine is, essentially, whether Irish law either requires or prohibits the recognition of either or both of the appellant’s two marriages. This involves the application of the rules relating to the conflict of laws and, in particular, the nature of Irish public policy in relation to polygamous marriages.
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, in particular capacity to marry.
Public policy is in general a matter for the Oireachtas. However, the recognition of foreign marriages has rarely been the subject of legislation in this State (one example is the Lourdes Marriages Act 1972, enacted to validate marriages that took place between Irish couples in Lourdes without regard to the requirements of French law) and any issue in relation thereto has historically fallen to the courts to determine in accordance with the rules of private international law. It should be emphasised from the outset that, while this Court must deal with the questions raised in this case, and will have to attempt to discern Irish public policy in so doing, that fact in no way interferes with the right of the legislature to enact such measures on the issue as it sees fit subject only to the requirements of the Constitution.
It must also be acknowledged from the outset that almost any decision in this difficult area, touching as it does upon fundamental aspects of people’s lives, is likely to reach a conclusion that is capable of causing distress and indeed unfairness to some private individuals and their families. That is a result of the fact that legal systems around the world differ greatly in the manner in which they regulate, or attempt to regulate, human relationships. There is not at present a universal consensus on the nature of marital relationships or how they should be regulated, and any national legal system that is called upon to make a judgment as to what marital arrangement it will or will not accept must determine the matter in accordance with its own rules. Those rules, in this jurisdiction, are currently found in the body of common law principles known as private international law or conflicts of laws.
The husband is a recognised refugee and naturalised Irish citizen, who is originally from the Lebanon. While domiciled there he contracted two marriages – the first in 1975 and the second in 1988. The husband has a subsisting relationship with each wife and there are children of both marriages.
All of the parties are Lebanese Muslims and there is no doubt but that both marriage ceremonies were valid under Lebanese law, in regard to both formalities and the capacity of the parties. The evidence in this respect was that under Lebanese law and Shari’ah a Lebanese Muslim man may marry up to four women.
The husband came to Ireland as an asylum seeker in 1998. He was recognised as a refugee in 2000 and on that basis became entitled under the Refugee Act 1996 to apply to the Mister for Justice, Equality and Law Reform to be joined by members of his family including his “spouse”. The husband applied initially in respect of the second notice party S.A.H. (“the second wife”), who is the wife of the 1988 marriage. She was admitted to the State in 2001 with a number of minor children, expressly on the basis that she was the wife of the husband. She is now an Irish citizen. In these proceedings 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.
In 2002 the husband was granted Irish citizenship. In the same year he made an application to have the first wife admitted to the State. The explanation for this later application is that she had been unable to travel earlier.
The question about the first marriage arises in its current form because the Minister refused to admit the first wife into the State under the terms of the Refugee Act 1996. The husband then instituted judicial review proceedings to quash that refusal. The application for a declaration under the Family Law Act 1995 was made as a result of a compromise agreed in 2005 between the parties in those proceedings.
After the commencement of the current court application, but before it was heard in the High Court, the first wife arrived in Ireland as an asylum seeker. There is no finding of any subterfuge concerning either her existence, the status claimed for her by the husband, or the intention that she should follow him here. She has been in the State since 2006 and although her asylum application was ultimately unsuccessful she has been granted permission to remain. Counsel for the Attorney General has told the Court that it is unlikely that any step would be taken to remove her at this stage, no matter what the outcome of these proceedings. However, the issue of her status is clearly not moot.
There are children of each marriage resident in the State, some of whom are recognised refugees while others were admitted on the basis of family reunification.
The Attorney General takes the position, 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. She accepts 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. The Attorney General contends that Irish public policy is opposed to the attachment of legal consequence in this State to polygamous marriages. That is so, it is argued, whether a marriage is actually polygamous (that is where more than one marriage has been entered into) or merely potentially polygamous (that is where there is only one spouse but the relevant legal system would permit subsequent marriages). However, in the course of the hearing of this appeal it seemed to be conceded that a more nuanced position might be adopted in relation to potentially polygamous marriages.
The nature of the proceedings
The Refugee Act 1996 confers an entitlement on a recognised refugee to be joined by family members, including the spouse of the refugee. The Act requires, in the case of a spouse, that the marriage be subsisting as of the date of the application. The statutory procedure for dealing with such an application involves its referral by the Minister to what was at the relevant time the office of the Refugee Appeals Commissioner. It is the function of the Commissioner to investigate the application and make a report to the Minister on the relationship between the refugee concerned and the person the subject of the application. If the Minister is then satisfied that the person is a member of the refugee’s family, he or she will grant permission to the person to enter and reside in the State.
Section 29 of the 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. These are:- 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.
A declaration under the section may be granted only if one or both of the spouses concerned is domiciled in the State, 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.
There appears to have been something of a practice on the part of the Minster for Justice, at one time, to refer applicants for family reunification to this procedure in cases...
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