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.