H.A.H. v S.A.A.

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 04 November 2010
• Neutral Citation: [2010] IEHC 497
• Docket Number: [2005 No. 53 M]
• Court: High Court
• Date: 04 November 2010

[2010] IEHC 497

HIGH COURT

No 53M/[2005]

H (HA) v A (SA) & Ors

FAMILY LAW

IN THE MATTER OF THE FAMILY LAW ACT, 1995

BETWEEN

H.A.H.

APPLICANT

AND

S.A.A.

RESPONDENT

AND

THE ATTORNEY GENERAL

FIRST NOTICE PARTY

AND

BY ORDER OF THE COURT S.A.H.

SECOND NOTICE PARTY

FAMILY LAW ACT 1995 S29

REFUGEE ACT 1996 S18(3)

REFUGEE ACT 1996 S18(4)

DICEY & MORRIS ON CONFLICTS OF LAW 14ED r69

DICEY & MORRIS ON CONFLICTS OF LAW 14ED r73

CONLON v MOHAMED 1989 ILRM 523

BINCHY IRISH CONFLICTS OF LAW 1988 212

BINCHY IRISH CONFLICTS OF LAW 1988 213

HYDE v HYDE 1866 LR 1 P&D 130

BAINDAIL v BAINDAIL 1946 1 AER 342

MOHAMED v KNOTT 1968 2 AER 568

SHAHNAZ v RIZWAN 1964 2 AER 1993

CHAUDREY v CHAUDREY 1976 FAM 148

MARRIED WOMEN'S PROPERTY ACT 1882 (UK)

DOMICILE & MATRIMONIAL PROCEEDINGS ACT 1973

LEE v LAU 1964 2 AER 248

D (K E) (OTHERWISE C) v C (M) UNREP CARROLL 26.9.1984 1984/6/1912

REG v BRENTWOOD SUPERINTENDENT REGISTRAR OF MARRIAGES 1968 2 QB 956

CONLON v MOHAMED 1989 ILRM 523 1987 ILRM 172

MAYO-PERROTT v MAYO-PERROTT 1958 IR 336

EEC DIR 2003/86

FAMILY LAW ACT 1995 S29(1)(A)

FAMILY LAW ACT 1995 S29(1)(D)

FAMILY LAW ACT 1995 S29(1)(E)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 12

R B v UNITED KINGDOM UNREP ECHR 29.06.1992 APP NO 19628/92

DICEY & MORRIS 13ED PAR 17-045

FAMILY LAW ACT 1995 S29(8)

BROOKE v BROOKE 1861 IX HLC 703

STORY COMMENTARIES ON CONFLICTS OF LAW 1872 71.10

CONLON v MOHAMED 1987 ILRM 172

CONSTITUTION ART 41

CONSTITUTION ART 41.3.1

ZAPPONE & GILLIGAN v REVENUE CMRS & ORS 2008 2 IR 417

MURRAY v IRELAND 1985 IR 532

T F v IRELAND 1995 IR 321

T v T 2002 3 IR 334 2003 1 ILRM 321 2002/26/6842

FOY v tARD CHLARAITHEOIR UNREP MCKECHNIE 9.7.2002 2003/22/5126

CONSTITUTION ART 41.3.3

CHENI v CHENI 1965 1P 85

MATRIMONIAL PROCEEDINGS (POLYGAMOUS MARRIAGES) ACT 1972

CONSTITUTION ART 4.4

FAMILY LAW

Marriage

Recognition - Foreign marriage - Polygamous marriage - Recognition -Public policy -Whether polygamous marriage could be recognised for purpose of family reunification - Whether polygamous marriage capable of recognition in Ireland - TF v Ireland [1995] 1 IR 321 and DT v CT (Divorce: Ample resources) [2002] 3 IR 334 applied; Mayo-Perrott v Mayo-Perrott [1958] IR 336 and Baindail (otherwise Lawson) v Baindail [1946] 1 All ER 348 distinguished - Family Law Act 1995 (No 26), s 29 - Constitution of Ireland 1937, Article 41 - Declaration of non-recognition granted (2005/53M - Dunne J - 4/11/2010) [2010] IEHC 497

AH(S) v AH(H)

IMMIGRATION

Family reunification

Marriage - Foreign marriage - Polygamous marriage - Recognition -Public policy -Whether polygamous marriage could be recognised for purpose of family reunification - Whether polygamous marriage capable of recognition in Ireland - TF v Ireland [1995] 1 IR 321 and DT v CT (Divorce: Ample resources) [2002] 3 IR 334 applied; Mayo-Perrott v Mayo-Perrott [1958] IR 336 and Baindail (otherwise Lawson) v Baindail [1946] 1 All ER 348 distinguished - Family Law Act 1995 (No 26), s 29 - Constitution of Ireland 1937, Article 41 - Declaration of non-recognition granted (2005/53M - Dunne J - 4/11/2010) [2010] IEHC 497

AH(S) v AH(H)

1 Judgment of Ms. Justice Dunne delivered the 4th day of November 2010

2 The applicant herein has sought a declaration pursuant to s.29 of the Family Law Act 1995 that the applicant's marriage to the respondent was at the date of its inception, a valid marriage. In the grounding affidavit, the applicant stated that he married the respondent on 3 ^rd day of January 1975, at Beirut, Shari'ah Court, Lebanon. There are a number of children of the marriage. The purpose of the proceedings was stated to be connected to an application for reunification of the family. The respondent was described as being a resident of Beirut, Lebanon, at the time of the issue of these proceedings. I am not entirely clear as to how the proceedings came to be served on the respondent outside the jurisdiction or if the proceedings were served on her outside the jurisdiction but in any event, an appearance was entered on her behalf on the 25 ^th October 2005. Indeed the respondent gave evidence before the court in the course of these proceedings.

Background

3 It would be helpful to explain how these proceedings came into being. The applicant herein had previously brought proceedings against the Minister for Justice, Equality and Law Reform for the purpose of quashing the decision of the Minister made on 1 ^st October 2003, refusing to grant permission to family members of the applicant to enter and reside in the State. Those proceedings were compromised and an order was made in those proceedings on 23 ^rd November 2004, which noted the applicant's agreement to bring an application before the court pursuant to s. 29 of the Family Law Act, 1995 (hereinafter referred to as "the Act") for a declaration that the applicant's marriage to the respondent herein was on the date of its inception, a valid marriage. An order of certiorari was also made in those proceedings quashing the decision of the respondent of the 1 ^st October, 2003, refusing to grant permission to the family members of the applicant herein to enter and reside in the State pursuant to s. 18(3) and (4) of the Refugee Act 1996 (as amended). Thus these proceedings were commenced as part of the compromise entered into between the applicant and the Minister for Justice, Equality and Law Reform.

4 Apart from the grounding affidavit to which reference has already been made, a number of other affidavits were sworn in the course of these proceedings and I propose to refer to those affidavits and then I will refer briefly to the evidence given in these proceedings. The applicant herein swore a further affidavit on 5 ^th April, 2006. He stated in that affidavit that at the time of his marriage to the respondent on the 3 ^rd January, 1975, neither he nor the respondent was lawfully married to any other person. He went on to say that he went through a "purported" ceremony of marriage with the second named notice party on the 26 ^th September, 1988, in Merjayoum Province, the Lebanon. The applicant said that the said notice party resides within the jurisdiction of the court. That affidavit was sworn in the context of an application to join her as a notice party in these proceedings, an application which clearly was granted.

5 The second named notice party swore an affidavit on 20 ^th June, 2008 in which she said that she was the wife of the applicant and she referred to the marriage certificate in relation to the marriage between the applicant and her which was exhibited by the applicant in his affidavit of the 3 ^rd October 2006. She and the applicant had four children. They reside in this jurisdiction and have so resided since August 2001. She explained that she, the applicant and his first wife are Muslims. At the time of her marriage to the applicant he was already married to the respondent. She was aware at the time of her marriage that the applicant was already married. She deposed that her marriage was and is valid under the laws of Lebanon and a normal marriage according to the laws and rules of her religion and traditions. She explained that the applicant left Lebanon and sought asylum in this jurisdiction in 1998. Having being granted refugee status in August 2000, he commenced the process of arranging for her and their children and for the respondent and her children to travel to Ireland. She stated in her affidavit that during the course of making arrangements for her travel to Ireland with her children, solicitors then acting for the applicant communicated with the Department of Foreign Affairs and the Irish Consul in Lebanon and referred to the fact that the applicant had two wives namely, the respondent and the second named notice party, both of whom he wished to bring to Ireland for the purpose of family reunification. She and her children were granted visas and permitted to come to the jurisdiction in July 2001, specifically on the basis that she was the applicant's wife. She says that leave to come to Ireland was granted on the basis that she was one of the two wives of the applicant. She has lived here since 2001. She confirmed that the applicant was granted citizenship in August 2002 and that their children were granted citizenship in or about 2006. Her application at the time of swearing of the affidavit has neither been granted nor refused. She went on to say that her marriage was and is valid and regular, pursuant to the laws of the Lebanon where the applicant, the respondent and she were domiciled and resident at the time of her marriage to the applicant. She accepts that such a marriage which is polygamous could not be entered into this jurisdiction but she avers that she has been advised and believes that the question of whether a polygamous marriage entered into in Lebanon where the marriage was lawful and valid is capable of recognition in this jurisdiction, is one that has not been considered in this jurisdiction. So far as she is concerned, she is the lawful valid wife of the applicant. She knows no reason why her status as the wife of the applicant should not be recognised in this jurisdiction. On that basis she is of the view that there is no reason why the applicant should not be granted the reliefs he seeks herein.

6 Affidavits of laws were also provided to the Court by an Attorney at Law, S. Mattar. I will refer to those affidavits later on in the course of this judgment.

7 As already mentioned oral evidence was also given before the court. The applicant gave evidence that he was born in Lebanon in the 1952. He married the respondent on 3 ^rd January 1975. At that stage he was living in Lebanon and intended to continue to reside there. He entered into a second marriage with the...