H.A.H. v S.A.A. (Validity of marriage)

JudgeMr. Justice Clarke,Ms. Justice O'Malley
Judgment Date15 June 2017
Neutral Citation[2017] IESC 40
CourtSupreme Court
Docket Number[Supreme Court Appeal No. 128/2011; 130/2011; 135/2011],[S.C. Nos. 128 & 130 of 2011]
Date15 June 2017

[2017] IESC 40



Clarke J.

O'Malley Iseult J.

Denham C.J.

O'Donnell Donal J.

Clarke J.

MacMenamin J.

Laffoy J.

Charleton J.

O'Malley Iseult J.

[Supreme Court Appeal No. 128/2011; 130/2011; 135/2011]



Polygamous marriage – Public policy – Conflict of laws – Appellant seeking a declaration that his marriage with his first wife was valid as of the date of its inception – Whether Irish law either requires or prohibits the recognition of either or both of the appellant’s two marriages

Facts: The appellant, 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 parties were Lebanese Muslims and there was no doubt that both marriage ceremonies were valid under Lebanese law. 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, the second wife. She was admitted to the State in 2001, expressly on the basis that she was the wife of the husband. She is now an Irish citizen. In these proceedings she supported the claim of the respondent, 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 was that she had been unable to travel earlier. The Minister refused to admit the first wife into the State under the terms of the 1996 Act. The husband then instituted judicial review proceedings to quash that refusal. An 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 2006 the first wife arrived in Ireland as an asylum seeker. Although her asylum application was ultimately unsuccessful she was granted permission to remain. There are children of each marriage resident in the State. The first notice party, the Attorney General, took the position that neither marriage should be recognised. The application under the 1995 Act was refused in the High Court. On appeal to the Supreme Court, council submitted that the Constitution does not require that recognition be refused.

Held by O’Malley J that 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. O’Malley J held that there was 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. O’Malley J 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.

O’Malley J held that she would allow the 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. O’Malley J 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, O’Malley J noted that this does not necessarily mean that such a marriage can never have legal consequences.

Appeal allowed.

JUDGMENT of Mr. Justice Clarke delivered the 15th day of June 2017.
1. Introduction

I fully agree with the judgment of by O'Malley J. and with the order she proposes. I write this concurrent judgment solely for the purpose of adding two observations of my own. Nothing in this concurring judgment should be taken as suggesting any difference from the conclusions proposed by O'Malley J. in her judgment or in the analysis which leads to those conclusions.


The first observation which I wish to make concerns the use of public policy as a basis for declining to recognise measures (such as marriages) which are considered valid in another jurisdiction in circumstances where the ordinary rules of private international law applicable in this jurisdiction would otherwise suggest that recognition should be afforded. I turn to that question.

2. Public Policy

There might be an interesting theoretical debate as to whether the public policy exception which applies in the case of the recognition of foreign measures (including marriages) forms part of the general provisions of the private international law of Ireland or may be regarded as an exception to the application of generally applicable rules. Interesting and all as that theoretical distinction may be, it is of no practical relevance, certainly in the context of this case. It is accepted that there may be cases where public policy requires non-recognition even though what one might describe as the ordinary rules of private international law might require recognition. This case is, of course, concerned with whether the public policy exception or rule actually requires non-recognition of marriage in the circumstances of this case.


The accepted existence of a public policy exception but also the acceptance, in Ireland, that we will, in appropriate cases and in accordance with Irish private international law, recognise measures which are valid in accordance with the law of another country even though they may not be considered valid in accordance with Irish domestic law, necessarily leads to the conclusion that there are three categories of cross border situation so far as Irish law is concerned.


First, there are measures which Ireland will consider as valid provided that they comply with the law of another jurisdiction which Irish private international law determines is the jurisdiction whose law governs the situation in question. The fact that this category of case exists necessarily stems from the fact that we recognise principles of private international law. If we were only to recognise measures which were valid in accordance with Irish domestic law, then there would be little point in much of the principles of private international law. It follows that there are some cases, therefore, where we will recognise a measure as valid even though the same measure would not comply with Irish domestic law. That is precisely what private international law does. It requires Ireland to accept as valid measures which comply with the law of another appropriate jurisdiction even though they do not comply with our own law.


Second, and at the other end of the spectrum, there are measures which are so contrary to the Irish national legal order that public policy requires that we do not recognise the measure in question notwithstanding that, ordinarily, and in accordance with the ordinary principles of private international law, we would afford recognition.


Third, and uncontroversially, there are cases where the relevant measure, even though arising in or from another jurisdiction, would be valid under Irish law in any event so that no real question of private international law or public policy arises.


Thus there are foreign ways which are the same as the ways in which we operate ourselves, there are ways in which we do not operate ourselves but where we recognise the validity of the way in which another appropriate jurisdiction operates in accordance with its own law and ways which are so contrary to our national legal order that we are not prepared to recognise actions taken in another appropriate jurisdiction even though they were lawful in that jurisdiction. This case is, of course, all about the boundary between the second and third of those categories.


In that context public policy has often been described as an ‘unruly horse’. Public policy should not, therefore, be used to interfere to any unnecessary extent with the orderly application of the sort of rules which are required to ensure that questions with a cross border element are dealt with in an appropriate way in accordance with private international law. There is, as counsel for the plaintiff/appellant argued, a significant value in measures such as a marriage being considered either to be valid or invalid in all jurisdictions and a significant value in avoiding situations where marriages are regarded as valid in one jurisdiction but not in others. However, that value is not absolute and it may have to yield, in an appropriate case, in circumstances where there is an overriding requirement of public policy, derived from the Irish legal order, which would preclude recognition and thus preclude the same status being accorded in Ireland as would be accorded in some other relevant jurisdiction or jurisdictions.


But it seems to me to follow, as O'Malley J. has suggested in her judgment, that public policy should only be deployed to the extent necessary to protect the values inherent in the Irish national legal order. Thus there are two questions which will normally arise when an issue such as the one before this Court requires to be determined. First, there is the question of identifying the fundamental values inherent in the Irish national legal order which the public policy exception is designed to protect. Second, there is the question of just how far it is necessary for the courts to go, in deploying the public policy exception to reach a different conclusion than that which might be arrived at under the...

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