EU family reunification directive is found not to cover families based on polygamous marriages.
H -v- A Neutral citation: (2010) IEHC 497.
High Court
Judgment was given on April 4th, 2011, by Ms Justice Elizabeth Dunne.
Judgment
The
marriage of a Lebanese man and woman in Lebanon, which was potentially
polygamous and later actually polygamous when he married again, was
valid under Lebanese law but not under Irish law.
Background
The
applicant was married twice in Lebanon, first to the respondent in 1975
and later to the notice party, in 1988. Both marriages took place under
Muslim and Lebanese law and all parties are Muslims, whose religion
permits a man taking up to four wives. The applicant came to Ireland
seeking asylum in 1998 and was granted refugee status in 2000.
He
then sought to bring both wives and children to Ireland to reunify his
family. The notice party (second wife) and children were given
permission to come as his wife and family, and came to Ireland in 2001.
A
compromise was reached with the minister concerning all of his
application for family reunification, part of which included his
undertaking to bring an application to the court under section 29 of the
Family Law Act 1995, seeking a declaration his marriage to the
respondent (first wife) was valid. This was heard in 2010, with the
attorney general and the second wife as notice parties.
The second
notice party said on affidavit that she knew the applicant was married
when she married him in 1988 and that this was acceptable under Lebanese
law and Muslim marriage custom. The respondent said she knew when she
married the applicant in 1975 that her husband could marry up to three
more wives, in accordance with their religion and with Lebanese law.
A
Lebanese lawyer, Salah Mattar, gave evidence that Lebanese law
acknowledged there were different religious communities in Lebanon and
that each community practised according to its own books and beliefs,
and therefore the Muslim communities did so according to the Sharia and
the Koran. He confirmed both marriages were valid under Lebanese law.
The
submissions on behalf of the applicant and both the respondent and the
second notice party stated that the rules of private international law
were clear. These were that the validity of a marriage was determined by
the domicile of the parties and the place where it was celebrated.
Therefore, the polygamous marriage of the applicant and the other
parties should be recognised unless there was strong reason to the
contrary.
An authority on Conflicts of Law, Dicey and Morris, was
quoted stating a marriage which was polygamous would be recognised in
England as a valid marriage unless there was some strong reason to the
contrary. Counsel for the applicant said the central legal issue here
was the rules concerning the conflict of law. It was clear the rules
governing the validity of marriage were based on the domicile of the
parties, and it was also clear that the marriage at issue here, that in
1975, must be declared valid, he said.
Counsel for the second
notice party said the case being brought was a procedure looking for
declaratory relief and not seeking any actual remedy or benefit.
Counsel
for the Attorney General said these proceedings may impinge on the
State interest concerning the status of marriage as an institution.
Public policy had an important bearing on the case, and in Conlon -v-
Mohamed it had been stated by the Supreme Court, as a comment in the
course of the case, that a polygamous marriage could not be recognised
in our law as a valid marriage.
He pointed to the various cases in
which marriage, as protected by the Constitution, had been described by
the courts as a monogamous union of one person with another.
Decision
Ms
Justice Dunne said it was clear the marriage contracted in Lebanon in
1975 was a valid marriage under Lebanese law. Referring to the authority
on Conflicts of Law, she said the reference to a “strong reason” for
the non-recognition of polygamous marriages raised the question of
public policy.
A number of English cases had opened the question
of the recognition of polygamous marriages, but in them references were
made to the “everyday running of our commonwealth and empire”,
considerations which clearly did not apply in this jurisdiction.
The
question here was whether the recognition of this marriage was contrary
to public policy, or incompatible with the Constitution. The public
policy of the State was informed by the Constitution, by legislation and
to an important extent by our culture and tradition. These were
outlined in a number of judgments describing marriage.
While
marriage was not defined in the 1995 Act, to interpret it as including
polygamous marriage “would be to give it an interpretation which is
simply not compatible with the constitutional understanding of
marriage”.To do so would be rewriting the understanding of marriage in
this jurisdiction. Therefore, it was not possible to grant the
declaration sought.
She added the EU directive on family
reunification did not provide for the reunification of families based on
polygamous marriages and there was no unified approach in the EU on
this question.
While there was no doubt this marriage was valid
under Lebanese law, polygamous marriage was at odds with marriage as
understood in this country and protected by the Constitution.
The full judgment is on courts.ie
Gerry
Durcan SC, Dervla Browne SC and Corinna Leddy BL, instructed by Eugene
Smartt Solr, for the applicant; James Devlin SC and Genevieve Burke BL,
instructed by McGarr Solrs, for the respondent; Inge Clissman SC and
Rita O’Meara BL, instructed by the Law Centre, Tallaght, for the notice
party; Feichin McDonagh SC and Denise Brett BL, instructed by the Chief
State Solicitor, for the Attorney General.