S40 H.A.H -v- S.A.A. & ors [2017] IESC 40 (15 June 2017)

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Cite as: [2017] IESC 40, [2017] 1 IR 372, [2017] 1 IR 72

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H.A.H -v- S.A.A. & ors
Neutral Citation:
[2017] IESC 40
Supreme Court Record Number:
128, 130 & 135/2011
High Court Record Number:
2005 53 M
Date of Delivery:
Supreme Court
Composition of Court:
Denham C.J., O'Donnell Donal J., Clarke J., MacMenamin J., Laffoy J., Charleton J., O'Malley Iseult J.
Judgment by:
Clarke J.
Appeal allowed
Judgments by
Link to Judgment
Clarke J.
O'Donnell Donal J., MacMenamin J., Laffoy J., O'Malley Iseult J.
O'Malley Iseult J.
Denham C.J., O'Donnell Donal J., Clarke J., MacMenamin J., Laffoy J., Charleton J.




[Supreme Court Appeal No. 128/2011; 130/2011; 135/2011]
Denham C.J.
O’Donnell J.
Clarke J.
MacMenamin J.
Laffoy J.
Charleton J.
O’Malley J.








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

1. Introduction
1.1 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.

1.2 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
2.1 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.

2.2 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.

2.3 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.

2.4 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.

2.5 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.

2.6 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.

2.7 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.

2.8 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 ordinary principles of private international law, so as to protect the fundamental values identified. As suggested earlier it does not seem to me that the Court should go any further than is necessary to protect those values.

2.9 On that basis I fully agree with the formulation of the fundamental values inherent in the concept of marriage in modern day Ireland which is to be found in the judgment of O'Malley J. It if fair to say, as she has pointed out, that those values have changed. Furthermore, they may change again in the future. But at present it seems to me that marriage, defined in the way in which it is described in the judgment of O'Malley J., forms a fundamental aspect of the Irish legal order and thus requires to be protected as a matter of public policy.

2.10 I further agree that the protection of that value does not require non recognition of a potentially polygamous marriage nor does it require the non recognition (or more accurately the withdrawal of recognition) of a first marriage in circumstances where a second, and polygamous, marriage is contracted while the first marriage subsists.

2.11 I would simply add one further observation. In the course of debate at the hearing of the appeal there was much discussion about an analogous issue being as to whether Ireland would recognise a marriage contracted where one or both of the parties was of a very young age but which was lawful having regard to the age requirements in the jurisdiction which the marriage was contracted. While it is unnecessary to make a definitive determination on that question in this appeal, it might well be the case that Irish public policy would require non recognition in the case of persons who contract marriage at a very young age. Whether such a marriage would be void or alternatively might be voidable (so that it could be affirmed by the parties continuing freely to assent to the marriage after they had reached an age when they might be regarded as capable of so doing), is an interesting question which has been debated in other jurisdictions most recently in Germany.

2.12 However, the point that I would wish to emphasise is that the fact that Ireland has a particular regime in respect of age of marriage does not necessarily mean that we would not recognise a marriage contracted at an age which is below the one which would be permissible in Ireland but which was not so fundamentally at variance with the Irish legal order so as to require non recognition as a matter of public policy.

2.13 I emphasise this point because it is important to recognise that the precise way in which the rights and obligations of a marriage (which broadly complies with the definition of marriage identified in the judgment of O'Malley J.) may come to be implemented may vary as to detail from jurisdiction to jurisdiction. O'Malley J. has quite rightly emphasised that it is a fundamental aspect of marriage in the Irish legal order that it is a coming together of equals. But the laws of many jurisdictions contain some distinctions between the rights and obligations of males and females in the marital context. The fact that the laws of another jurisdiction may not precisely define those rights and obligations in the same way as in Ireland would not, in and of itself, mean that such a marriage would be at such fundamental variance from marriage as it is considered in Ireland to justify non recognition.

2.14 It is only where the difference is so significant that it can be said that the marriage is fundamentally at variance with Irish legal norms that the question of non-recognition arises. Furthermore, it must be noted that certain aspects of the consequences of being married necessarily and automatically change when persons move from one jurisdiction to another. Whatever may be the rules of another jurisdiction concerning questions such as succession, pensions, obligations of maintenance or the like, where persons validly married in accordance with the law of such jurisdiction come to Ireland to reside here on a permanent basis then the rights and obligations of marriage will, at least in very many respects, automatically come to be governed by Irish law. It is, therefore, necessary to distinguish between aspects of the consequence of being married which automatically change when moving permanently from one country to another and those, such as the number of persons one is married to, which do not. The former are most unlikely to provide any barrier to recognition for, even if the nature of marriage in the country in which persons were married may differ significantly from the nature of marriage in Ireland, the very act of moving permanently to Ireland may change the nature of the marriage in question. It is only where recognition would require that a marriage be held to exist in Ireland which was at fundamental variance to Irish legal norms that the public policy exclusion is likely to come into play.

2.15 That leads to one final point under this heading. There was also debate at the hearing of this appeal which centred on the question of whether Ireland could purport to tell other countries what to do. Ireland does not, of course, take that position. Ireland accepts that marriages in other countries may well be valid in circumstances where the marriage would not alone not be valid in Ireland but where Ireland could not accord recognition, in Ireland, to such a marriage. Ireland does not, therefore, tell other jurisdictions what they are to do within their own boundaries. But it is a very different thing indeed to suggest that it follows that Ireland must necessarily afford recognition, in Ireland, to a form of marriage which is at fundamental variance to Irish legal norms.

2.16 However, it is precisely because Ireland does recognise, as a matter of fact, that marriages may take different forms in different countries, that I fully agree with the view expressed by O'Malley J. that it does not necessarily follow from the fact that Ireland may not recognise a particular marriage as such, that the law may not, nonetheless, and for particular purposes, give some recognition to that de facto position. That is the second issue on which I wish to make a few brief observations.

3. Recognition of the Fact of a Foreign Marriage for Certain Purposes
3.1 The starting point for my observations under this heading must be to indicate that I agree with O'Malley J. that the fact that a marriage may not be recognised under the principles identified in her judgment does not, necessarily and in and of itself, mean that Irish law may not afford some de facto recognition to the fact that there is a marriage in being which subsists in the law of another relevant jurisdiction. Such limited recognition might be for the purposes of determining the practical consequences which are to apply in the range of issues, such as inheritance, pensions, maintenance and the like which are explored in her judgment.

3.2 I would emphasise that it would be preferable if the precise rules which are to apply in that regard are determined as a matter of legislation by the Oireachtas. I suggest this for two reasons.

3.3 First, a court might well encounter significant difficulties in being able to deal, in a just and considerate manner, with some of the issues which might arise if the Court was constrained to find that a particular marriage could not be recognised in Ireland and if the area which the Court had to deal with was governed by legislation which did not appear to confer any flexibility. It follows that there might well be circumstances where the justice of a particular case might suggest a particular course of action but where the courts would be precluded from following that course of action because of the absence of legislation.

3.4 Second, and perhaps of equal if not greater importance, it is necessary to record that one of the advantages of legislation is that it brings immediate certainty to the area in question. People know where they stand and can order their affairs accordingly. Even to the extent that courts may be able to interpret Irish legislation and Irish law for the purposes of deciding whether any rights arise in the context of a marriage which cannot be recognised in Ireland, the overall picture will necessarily remain uncertain unless and until a court has had the opportunity to consider the question and even then it is likely that it would take some time, and a series of cases, before some overall clarity was brought to the area in general. It is particularly undesirable that the kind of important, sensitive and difficult questions which may arise in that context might be left in a state of uncertainty until an appropriate jurisprudence develops. In that context it is very much to be hoped that the Oireachtas will take the opportunity to clarify and bring certainty to many of the questions which arose in the course of this hearing. As O'Malley J. points out it would appear, from the answers given by the Attorney General to certain questions raised by the Court, that a pragmatic and practical approach has been brought by the administration in at least some of those areas which directly impact on public authorities. It might not be too much to hope that the fact that a particular focus has been shone on those areas as a result of this case might lead to the various rights and obligations identified being the subject of legislation which would bring clarity to the matter.

3.5 In the absence of legislation the courts will have to do the best they can and decide, on a case by case basis, whether any rights in any particular category can be recognised in the case of persons who are regarded as married in the eyes of a relevant foreign jurisdiction but whose marriage is not recognised in Ireland. Similar questions have arisen in other jurisdictions not least the United Kingdom, France and Germany. Each of those jurisdictions has, of course, a significant Muslim population and the practical questions which arise, as to the rights of persons in marriages which are polygamous but lawful in the country in which the marriage was contracted, have obviously had to be dealt with by the courts as best they can. Doubtless the Irish courts will play a similar role if and when such questions arise but I do not think it can be too strongly emphasised that the role of the courts will be all the more difficult and the results almost certainly less satisfactory, in the absence of legislation.

4. Conclusion
4.1 I fully agree with the judgment of O'Malley J. and the resolution of this appeal which she proposes.

4.2 I write this concurring judgment for the purposes of making some short observations on two issues being first the question of the role of public policy as an exception to the application of what might otherwise be regarded the ordinary rules of recognition contained in private international law. The second concerns what i consider to be a very strong imperative that urgent attention be given to the question of whether legislation should be enacted for the purposes of bringing certainty to the question of whether, and if so to what extent, the fact that a marriage may be valid in accordance with the laws of another jurisdiction might legitimately affect some rights and obligations of parties in Ireland even though Irish law would not afford recognition to the marriage in question.

JUDGMENT of Ms. Justice O’Malley delivered the 15th day of June 2017.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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
13. 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.

14. 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.

15. 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.

16. 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 where it appeared to the Minister that the person concerned was not a “spouse” under Irish law. It was made clear in Hamza v. The Minister for Justice, Equality and Law Reform [2013] IESC 9 and Hassan v. The Minister for Justice, Equality and Law Reform [2013] IESC 8 that this was inappropriate. It is for the Minister to decide, under the family reunification provisions, whether an applicant was married to the person he or she wishes admitted as a spouse, and it is not open to the Minister to decline that question by suggesting that a declaration be sought from the courts. Furthermore, as Cooke J. pointed out in Hamza, it is clear that the s.29 procedure, while it might on occasion resolve doubts, is not normally apt for the purpose of dealing with family reunification issues. Amongst other considerations, Cooke J. pointed out that the section is directed at resolving disputed issues in the case of parties with an established connection with the State, and that the Circuit Court (being the court dealing with most of the applications under the section) lacked the inquisitorial competence or investigative function available to the Minister under the family reunification process set out in the Refugee Act.

17. On the appeals in those cases this Court agreed with the analysis of Cooke J., and it may be noted that all of the parties to this litigation, including the Attorney General, now also agree.

The High Court judgment
18. The application under the Family Law Act was refused in the High Court (Dunne J. - see H.A.H. v. S.A.A. [2010] IEHC 497). After a careful analysis of the Irish and English common law authorities, as well as European Union law and case law on the European Convention on Human Rights and Fundamental Freedoms, the trial judge concluded that to interpret the word “marriage” as including polygamous marriage was simply not compatible with the Irish constitutional understanding of marriage. To hold otherwise, she considered, would be to re-write the understanding of marriage in this jurisdiction. The basic concept of marriage as enshrined in the 1937 Constitution had, she accepted, remained unchanged, despite the removal of the prohibition of divorce. On that basis, it was not possible to grant a declaration that the marriage was valid in the eyes of Irish law.

19. It is of relevance to note that in the High Court the Attorney General placed reliance on the decision of Dunne J. in Zappone and Gilligan v. The Revenue Commissioners & Ors. [2008] 2 IR 417. The plaintiffs in that case were two women who had married in Canada. At that time Canada had legislated for same-sex marriage but Ireland had not, and the issue was whether the marriage could be recognised here. Dunne J. observed that marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex, and held that, despite significant changes to the institution of marriage since that date, Articles 41 and 42 could not be read as relating to a same-sex union.

20. The trial judge, having referred to Zappone, quoted the following passage from the judgment of Hamilton C.J. in T.F. v. Ireland [1995] 1 I.R. 321:

        “As to how marriage should be defined, the Court adopts the definition given by Costello J. in Murray v. Ireland [1985] I.R. 532 at p. 535:-

        ‘…the Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of partnership based on an irrevocable personal consent, given by both spouses which establishes a unique and very special lifelong relationship.’

And in N. v. K. [1985] I.R. 733, McCarthy J. said in his judgment at p.754:-
        ‘Marriage is a civil contract which creates reciprocating rights and duties between the parties but, further, establishes a status which affects both the parties to the contract and the community as a whole.’
One of the reciprocating rights and duties is obviously that of cohabitation. It is an important element in marriage that the spouses live together. The unique and special relationship referred to by Costello J. could not be developed otherwise.”

21. Reference was also made to the view of Murray J. (as he then was) in D.T. v. C.T. [2003] 1 ILRM 321, where the following passage commences at p. 374:

        “…marriage itself remains a solemn contract of partnership entered into between man and woman with a special status recognised in the Constitution. It is one which is entered into in principle for life. It is not entered into for a determinate period. The moment a man and woman marry, their bond acquires a legal status. The relationship once formed, the law steps in and holds the parties to certain obligations and liabilities. Even where a marriage is dissolved by judicial decree the laws of many if not most states require that the divorced spouses continue to respect and fulfil certain obligations deriving from their dissolved marriage for their mutual protection and welfare, usually of a financial nature….

        The life-long commitment which marriage in principle entails means that there is a mutuality of an intimate relationship in which singular aspirations in the life of each partner are adapted to mutual life goals. They adapt their lives to live and work together for the mutual welfare of their family which usually, but by no means necessarily so, involves the birth and rearing of children. Husband and wife having mutual duties and responsibilities for the welfare of each other and the marriage, will, throughout the marriage, make private decisions as to the role each of them will play in the support of the marriage, the achievement of their goals and their lifestyle. These decisions are likely to have an effect on their way of life even after the eventuality of a divorce, such as the capacity of one of them at that stage to establish an independent and secure way of life.”

22. In discussing the nature of Irish public policy, Dunne J. observed that the factors influencing the decisions of the English courts, derived from the requirements of running a commonwealth and empire, were not of particular relevance here. She considered that public policy in this jurisdiction was informed by the Constitution, legislation and, to an important extent, Irish culture and tradition, while noting that Ireland had become an increasingly multi-cultural and pluralist country. The changes to the institution of marriage brought about, for example, by the introduction of divorce had not altered the basic meaning and constitutional understanding of “marriage” as set out in T.F. and in D.T. v. C.T. That meaning was not compatible with polygamous marriage.

Submissions in the appeal
23. One argument made on behalf of the appellant can, I think, be dealt with fairly briefly. Counsel has submitted that in determining the reach of public policy in this area the Court must have regard to the overall scope and architecture of the Constitution, and that is certainly correct. It is argued, in reliance on Nottinghamshire County Council v. B. [2013] 4 I.R. 662 and Balmer v. The Minister for Justice and Equality [2016] IESC 25, that the Constitution does not purport to regulate transactions that occur outside the jurisdiction. Foreign marriages, the argument goes, are not intended to be subject to the same rules as marriages within the State.

24. The difficulty with this submission is that the analysis of the Court in both Nottinghamshire and Balmer was concerned with events that were to happen outside the jurisdiction, under the applicable law of another State. The contention, unsuccessful in each case, was that the Court could refuse to make the parties concerned amenable to that other State because the Irish Constitution applied different standards to such events and would not produce the same result as the foreign jurisdiction. The appellants are correct in arguing that this Court concluded that the Constitution did not purport to apply its rules to other jurisdictions. However, I cannot see that it is of great relevance to the issue in the instant case. The appellants claim that the first wife has a legal right under Irish law, on foot of her status as a wife of the husband, to enter and reside in the State. The ruling of the Court will therefore determine a question of personal status for the purpose of the law of, and within, this State. That is manifestly a matter for the application of national law, which in this case means the application of conflict of law rules including the question of public policy.

25. On the main issue counsel has made a carefully limited argument. It is not suggested that either the appellant or the first wife has any constitutional right to have the marriage recognised as valid. It is further accepted that it is open to the legislature to prohibit such marriages within the State; to define the circumstances in which marriages may be recognised; and to define the rights to be enjoyed by the parties in this State including the right to family reunification. The submission, primarily, is that the Constitution does not require that recognition be refused. Further, it is argued that it is not sufficient for refusal that this is a form of marriage not permitted here - it is submitted that a refusal to recognise it, in circumstances where it is acceptable in large parts of the world, would require a finding that by Irish standards it is “egregious”. Thus, it is accepted that coerced marriages or marriages which could be equated with slavery would not be recognised here, but it is contended that the form of marriage into which the individuals in this case have entered is not of that nature.

26. Counsel for the first wife submits that since a marriage need not, in the context of private international law, be recognised for all purposes of the national law, it is not necessary for her to come within a constitutional definition of marriage. It is sufficient for her to establish that she is a wife for the purposes of family reunification. He stresses the fact that the declaration sought relates only to the date of inception of the marriage.

27. Counsel for the Attorney General submits that for reasons of public policy neither marriage could be recognised under Irish law, and argues that the Court is bound to so find by precedent and by the Constitution. He stands over the definition of marriage set out in Hyde v. Hyde [1866] LR 1 P. & D. 130, and accepts that the logic of his argument is that all of the parties are free, so far as Irish law is concerned, to remarry (unless an Irish court adopted the analysis of Baindail v. Baindail [1946] P. 122, and held that a polygamous marriage was recognisable to the extent that it was an impediment to marriage here); that they do not enjoy succession rights; and that the children are all non-marital.

28. Originally, counsel for the Attorney General did not accept any distinction between actually and potentially polygamous marriages, arguing that potentially polygamous marriages were not intended by the parties to be monogamous and therefore could not be recognised by the Constitution. It was submitted that it was not open to this Court to develop public policy by accepting the English line of authority to the effect that a potentially polygamous marriage could be converted into a monogamous one by, for example, a change of domicile. In any event, it was argued, those authorities had no relevance to the instant case. However, by the end of the hearing a somewhat more nuanced approach appeared to be taken.

29. It seems that in practice many State Departments and agencies will treat as monogamous and therefore valid a potentially polygamous marriage where the parties are resident here and in a de facto monogamous relationship. (In summarising the argument here, I am avoiding the use of terminology with technical legal meanings such as “domicile” or “habitual residence”. The point is that the State appears to take a pragmatic approach to couples who are resident here for long enough to have dealings with it).

Common law authorities on recognition of polygamous marriages
30. Generations of lawyers are familiar with the words of Lord Penzance in Hyde v Hyde [1866] LR 1 P. & D. 130:

        “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
31. However, it is necessary to look at the context of those words, as well as at the consequences. The matter before the court was a petition by a husband for a dissolution of his marriage on grounds of adultery. The couple had been married according to the rites of the Mormon Church in Utah, which permitted polygamy. The husband had subsequently left Utah and the Mormon faith, and the wife had then divorced him in Utah and remarried. This was the “adultery” complained of by the husband. The question Lord Penzance was posing and answering was whether there had been a marriage in the sense understood in the Matrimonial Court of England, so that the parties could be considered “husband” and “wife” in the sense used in the Divorce Act.

32. The definition cited above was seen as giving the essential elements and invariable features of the institution of marriage as seen in Christendom. It was accepted that in many countries of the world people did not live or cohabit together upon these terms. The judgment continues:

        “In such parts the men take to themselves several women, whom they jealously guard from the rest of the world, and whose number is limited only by considerations of material means. But the status of these women in no way resembles that of the Christian ‘wife’. In some parts they are slaves, in others perhaps not; in none do they stand, as in Christendom, upon the same level with the man under whose protection they live. There are, no doubt, in these countries laws adapted to this state of things - laws which regulate the duties and define the obligations of men and women standing to each other in these relations. In may be, and probably is, the case that the women there pass by some word or name which corresponds with our word ‘wife’. But there is no magic in a name; and, if the relation there existing between men and women is not the relation which in Christendom we recognise and intend by the words ‘husband’ or ‘wife’, but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial observer.”
33. Lord Penzance said that it was obvious that the matrimonial law of England was adapted to Christian marriage and was wholly inapplicable to polygamy. The remedies provided by the law corresponded to the rights and duties created by the marriage contract, and could not be applied to a contract of such a different nature which did not confer those rights and duties. There was no law in England adjusted to the requirements of a polygamous marriage. He expressed doubts as to whether, in any event, it would be fitting for English courts
        “to enforce the duties (even if we knew them) which belong to a system so utterly at variance with the Christian conception of marriage, and so revolting to the ideas we entertain of the social position to be accorded to the weaker sex.”
34. It had been submitted on behalf of the petitioner that English matrimonial law could be applied to the first of a series of polygamous marriages, treating subsequent unions as void. Lord Penzance rejected this on the basis that it would be impossible, and unjust, for the courts to enforce the duties of marriage in favour of a first wife where the husband had done what his marriage contract allowed and taken a second wife. The compact of a polygamous marriage did not carry with it the duties which it was the role of English marriage law to enforce. In this regard he referred specifically to the action for restitution of conjugal rights and to the right of a wife to judicial separation and alimony in the event of marital offences on the part of the husband.

35. The petition was therefore rejected. However, in his final remarks Lord Penzance made it clear that he was dealing only with the question of whether relief could be obtained under the matrimonial law, and not with issues such as succession, legitimacy or the rights of third parties.

36. Hyde v. Hyde was approved by Haugh J. in Griffith v. Griffith [1944] I.R. 35 and appears to have been widely accepted in this State as embodying the definition of marriage in Irish law. It was referred to in Shatter’s Family Law (3rd ed., 1986) as the “classic” legal definition of marriage. It appears to have been accepted also as encapsulating Irish public policy on the issue of polygamy. So, for example, in Conlon v. Mohamed [1989] ILRM 523 (considered below) the Supreme Court dealt in one sentence with the question whether a couple who had entered a potentially polygamous marriage could be recognised as married.

37. However, it is worth noting that in England the potential scope of Hyde v. Hyde as an authority was considerably reduced over the years before the matter was eventually made the subject of legislation in 1972 in the Matrimonial Proceedings (Polygamous Marriages) Act. For example, in 1930 the English Court of Appeal reversed a High Court decision that a Russian marriage, dissoluble more or less at will on the registration of a declaration, could not be recognised as a marriage under English Law. The High Court judge had considered that the ease with which divorce could be obtained caused the marriage to fall outside the description of marriage as a “union for life”. The Court of Appeal took the view that the essential element was that the parties intended the union to last for life unless dissolved in the manner provided by law (Nachimson v. Nachimson [1930] P. 217).

38. In Baindail v. Baindail [1946] P. 122 an Englishman who had acquired an Indian domicile married an Indian woman according to Hindu rites. The marriage was potentially polygamous but was valid according to the law of British India. He subsequently married an Englishwoman in England. When she discovered the earlier marriage she petitioned for a decree of nullity. The Court of Appeal held that the marriage in India must be recognised as a valid marriage and as an effective bar to any subsequent marriage in England. Again, as in Hyde v. Hyde, the Court made it clear that the decision was not to be taken as determining the status of the marriage for all purposes and in every context. It did not, for example, have “the slightest bearing” on the question whether the husband had committed bigamy.

39. There are a number of cases where the English courts have recognised a marriage that was initially potentially polygamous but had been “converted” into a monogamous marriage by some external event such as the introduction of a prohibition on polygamy into the law of the country of domicile (Parkasho v. Singh [1967] 1 All E.R. 737); the birth of a child where the right of the husband to take a second wife arose only in the event of childlessness for a period of ten years (Cheni v. Cheni [1965] P. 85); or the acquisition by the spouses of a domicile in a monogamous country (Ali v. Ali [1966] 2 W.L.R. 620).

40. It is apparent from reading many of the English authorities that the judges were considerably influenced by the fact that they frequently had to deal with cases arising from the travels of British subjects in Britain’s colonial possessions. In general the British Empire did not seek to eradicate local customs and religions, and it was therefore necessary to take a pragmatic approach to the rules applicable to marriages.

41. According to the 2012 edition of Dicey, Morris & Collins on The Conflict of Laws (Sweet & Maxwell, 15th ed.) polygamous marriages are now recognised under English law for most purposes. The English rules of private international law will recognise a marriage celebrated in a foreign country under a system of law permitting polygamy.

Conflicts of laws and public policy
42. Considerations of public policy play, on the one hand, a central role in the common law rules on the resolution of conflicts of laws and yet, in certain respects, a lesser one than they might in purely domestic litigation.

43. The centrality of the role arises from the fact that public policy considerations may result in the refusal of a court to apply what would otherwise be the appropriate legal rule. In Dicey, Morris & Collins this aspect is described in Rule 2:

        “The English courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental policy of English law”.
44. In the Irish context this was explained in the following passage by Kingsmill Moore J. in Buchanan Ltd v. McVey [1954] I.R. 89, at p. 106:
        “In deciding cases between private persons in which there is present such a foreign element as would ordinarily induce the application of the principles of a foreign law, Courts have always exercised the right to reject such law on the ground that it conflicted with public policy or affronted the accepted morality of the domestic forum. Contracts valid according to what would normally be considered the ‘proper law’ of the contract will not be enforced if in the view of the Court, they are tainted with immorality of one kind or another. Delicts committed abroad are not actionable here unless they are torts by our law. Slavery or any other status involving penal or privative disabilities is not recognised.”
45. However, the authors of Dicey, Morris & Collins state clearly that the doctrine of public policy must, when applied in the field of the conflict of laws, be kept within proper limits since otherwise “the whole basis of the system is liable to be frustrated.” It should be invoked only “in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds” (citing Fender v. St John-Mildmay [1938] A.C. 1).

46. In Cheni v. Cheni Lord Simon observed that, in deciding whether or not public policy required a court to refuse to apply what would otherwise be the appropriate foreign rule of law, recourse should be had to “common sense, good manners and a reasonable degree of tolerance”.

47. Similarly, in Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336 O’Daly J. referred to the 5th edition of Cheshire’s Private International Law as observing that the conception of public policy is, or should be, narrower and more limited in private international law than in internal law.

        “A transaction that is valid by its lex causae, he says, should not be nullified on this ground unless its enforcement would offend some moral, social or economic principle so sacrosanct in English eyes as to require its maintenance at all costs and without exception.”
48. Baindail v. Baindail is a good example of the application in English law of public policy considerations. The Court of Appeal was clear that the question of validity depended on context. At p. 128 Lord Greene M.R. said:
        “…[I]t seems to me that the matter rests in this way: the courts of this country do for some purposes give effect to the law of the domicile as affixing or imposing a particular status on a given person. It would be wrong to say that for all purposes the law of the domicile is necessarily conclusive as to capacity arising from status. There are some things which the courts of this country will not allow a person in this country to do whatever status with its consequent capacity or incapacity the law of his domicile may give him. The case of slavery, of course, is an obvious case. The status of slavery would not be recognised here, and a variety of other things involved in status will not be recognised here…

        The practical question in this case appears to be: Will the courts of this country, in deciding upon the validity of this English marriage, give effect to the status possessed by the respondent? That question we have to decide with due regard to common sense and some attention to reasonable policy…I think it is certainly a matter to bear in mind that the prospect of an English court saying that it will not regard the status of marriage conferred by a Hindu ceremony would be a curious one when very little more than a mile away the Privy Council might be sitting and coming to a precisely opposite conclusion as to the validity of such a marriage on an Indian appeal. I do not think that we can disregard that circumstance. We have to apply the law in a state of affairs in which this question of the validity of Hindu marriages is necessarily of very great practical importance in the everyday running of our Commonwealth and Empire.”

49. The judgment goes on to consider the practical implications for the parties, and in particular the availability or otherwise of rights such as consortium or divorce in each of the two countries, if the marriage was not recognised.

50. Considerations of Irish public policy were crucial to the outcome of Mayo-Perrott. The plaintiff in that case had obtained a decree for a divorce in the English High Court. She sought judgment in this State, where her former husband was residing, in respect of unpaid legal costs. It was argued successfully on his behalf that the order was unenforceable as being contrary to public policy. The judgments of the Supreme Court proceed on the basis that the constitutional prohibition on divorce, as it stood at that time, necessitated the stance that Irish law would not give active assistance to the process of divorce in another State by entertaining a suit for the costs. However, the constitutional provisions did not mean that Irish law would not recognise, as it had under the law pre-dating the Constitution, the change in status brought about by a divorce granted in a country where the parties were domiciled. Policy issues were also relevant to that conclusion. Discussing this aspect Kingsmill Moore J. said (at p. 347):

        “A contrary view would lead to strange and perplexing results. If married persons domiciled in England were divorced and remarried the remarriages would be valid in England and the children of the remarriages legitimate; but if the remarried persons came to Ireland they would be subject to prosecution for bigamy and their children would rank as illegitimate. Even more strange, if the original spouses deserted their spouses of the second marriage, came together again and had further children, those children would be legitimate in Ireland and illegitimate in England.”
51. Later in his judgment Kingsmill Moore J. referred to the fact that the established law avoided the “anomalous, if not scandalous” state of affairs whereby legitimacy and criminality “could be decided by a flight over St. George’s Channel”.

52. O’Daly J. considered that criteria referred to by Cheshire were met, in that the enforcement of the costs of a divorce decree would clearly offend against a moral principle asserted by the Constitution, with particular reference to the pledge to guard with special care the institution of marriage.

53. Maguire J. noted that the case did not raise any specific question of status, legitimacy, remarriage, bigamy or personal rights or rights of property of either of the parties. Such questions, he felt, could only be decided on facts calling for their decision if and when they arose. On the facts, he considered that it was “clearly repugnant” to the laws of Ireland that the decree of dissolution as a whole could be implemented in this State, and that it was not possible to sever the terms of the judgment. Similarly, Maguire C.J. considered that the Constitution denied any validity to the decree in this State.

54. It may be noted that some commentators have criticised the deployment of public policy in this area. For example, in an article entitled “Rationality and cultural pluralism in the non-recognition of foreign marriages” (2000) 49(3) I.C.L.Q. 643, Murphy suggests, firstly, that there is “a capacity for the mask of ‘public policy’ to be seen as judicial cultural imperialism rather than as adherence to some widely accepted social value or norm.” Secondly, he suggests that the term conceals a series of particular concerns, only some of which are relevant to the adjudicative process. He argues that the denial of recognition to a bigamous marriage “disguises the fact that it is the preservation of the institution of monogamy within the country of recognition that is at stake”.

The Irish authorities on polygamous marriage

Conlon v. Mohamed
55. None of the small number of Irish authorities relevant to the instant case involved a public policy analysis of the status of polygamous marriages. In Conlon v. Mohamed [1989] I.L.R.M. 523 an Irishwoman had gone through an Islamic marriage ceremony with a South African citizen in South Africa. According to the evidence in the High Court, the marriage would not have been recognised under South African law because (i) it took place in a mosque; (ii) it took place by proxy, with the wife being represented by a male friend; and (iii) it was interracial. The couple later had a private ceremony at which they exchanged rings. They then lived together in Ireland in a house owned by the plaintiff but subsequently fell out. The issue before the court was whether she was entitled to an order for possession of the house, in circumstances where the defendant argued that it was the marital home. Since the marriage had not been in accordance with the law of South Africa, he was forced into the position of arguing that it was a valid common law marriage (the definition of which is not relevant to the instant case). The High Court judge concluded it was not, on the basis that it was potentially polygamous. He stated a case to the Supreme Court on the question whether he was correct.

56. According to the High Court judgment, both parties accepted that the marriage was potentially polygamous. At the hearing of the case stated, the defendant appears to have attempted to challenge this as an incorrect inference in law. The Supreme Court held that it was bound by the finding. Having done so, the judgment of Finlay C.J. went on to answer the question asked by the High Court as follows:

        “It has not been contested that a polygamous marriage cannot be recognised in our law as a valid marriage.

        That conclusion answers the precise question put in the case stated by the learned trial judge to this Court and is, in my view, the only matter necessary for decision for this Court and was the grounds on which the court had already answered the question posed in the affirmative.

        I would like to refer to certain other matters which have arisen on the hearing of this case. They include the precise standing and limits of a common law marriage in our law; the proper principles to be applied in our law to the question of the validity of a marriage contracted outside Ireland by a person domiciled in Ireland, having regard to the lex loci celebrationis, and questions of public policy which would arise in our law concerning the prohibition under local law of inter-racial marriages.

        Since none of these issues is necessary for the answering of the questions raised by the learned High Court judge, I do not consider it appropriate to express a view on them.”

57. It is apparent that the principal debate in the High Court was about whether or not there had been a valid “common law” marriage, and that neither that Court nor the Supreme Court, therefore, found it necessary to address any submission in relation to polygamy. It may be noted that in any event the wife, who was domiciled in Ireland, would not have had capacity to enter into a polygamous marriage and the marriage would have to have been deemed invalid on that ground alone. I think that it must be assumed from the passage quoted that, given that the relationship in question was certainly monogamous, the Court must have implicitly adopted Lord Penzance’s view that potentially polygamous marriages were to be considered to be in the same category as actually polygamous marriages. However, there was no analysis of this aspect.

58. Conlon v. Mohamed was cited in the judgments of this Court in the relatively recent cases of Hassan v. Minister for Justice, Equality and Law Reform and Hamza v. Minister for Justice, Equality and Law Reform. The issue of polygamy was not central to either - the cases concerned, respectively, the validity of a religious marriage and a marriage by proxy - and the question of public policy did not require full analysis. Both cases were initially heard in the High Court by Cooke J., who expressed the opinion that the decision in Conlon v. Mohamed

        “ought not be taken as a dictum that a potentially polygamous marriage can never be recognised as valid in Irish law as a general proposition”.
He stated his own view as being that
        “…a foreign marriage validly solemnised in accordance with the lex loci may be recognisable as valid in Irish law, even if it was potentially polygamous according to that law, provided neither party was domiciled in Ireland at the time and neither has also been married to a second spouse, either then or since.”
59. However, it must be noted that in the Supreme Court, having set out the rule for the recognition of foreign marriages referred to in paragraph 2 above, Fennelly J. observed that in Conlon v. Mohamed the basis for the decision had been that Irish law would not recognise a polygamous marriage.

Irish public policy and polygamy
60. As I said at the start of this judgment, public policy is primarily a matter for the Oireachtas, not least because it is better placed than the courts to weigh up and balance the relevant competing considerations. Subject to constitutional considerations, the courts are bound to give effect to policy choices made by the Oireachtas. However, since this Court must embark on the exercise in this case, it is useful to spell out the factors which, in my view, should contribute to a decision made on public policy grounds.

61. Clearly, an Irish court seeking to discern Irish public policy on a given issue must give primacy to any applicable constitutional principles. In this regard, it may be noted that in Hassan Fennelly J. said that when the word “marriage” is included without definition in a statute, it must be given a constitutional interpretation. If the Constitution lays down a clear rule that will be the end of the matter. However, it has to be remembered that the rules of private international law are themselves part of the body of laws carried over by Article 50 of the Constitution. The application of the common law rules of private international law frequently means that the laws of foreign legal systems must be given legal effect in this jurisdiction, even where that leads to a result that would otherwise be contrary to national law.

62. Similarly, if a provision of European Union law extends to a given question of law that will be decisive, except in so far as any relevant legislation provides for an exception in respect of national public policy or “ordre public”.

63. Because of the importance of public policy in the determination of a dispute involving conflicts of laws, it seems to me that the binding force normally accorded to previous decisions of this Court may have to be regarded as weaker in this area. This is because public policy, by its nature, changes over time. The relevant legal and factual context can both alter, necessitating recognition of new public policy considerations. Older propositions once taken as axiomatic become more doubtful. As an obvious example, the fact that the Constitution was amended in 1996 to permit the introduction of divorce legislation in this State must, I think, mean that it would no longer be considered necessarily contrary to public policy to enforce an order for costs originating in a foreign divorce as in Mayo-Perrott. That judgment has, I consider, lost its status as a binding precedent. However, the more recent a decision in this area of law is, the more likely it is to be persuasive since it is more likely to reflect public policy.

64. The policy of the State as manifested in legislation on related areas, especially where recently enacted, is a highly relevant indicator of policy. Some of the more significant statutory provisions are summarised below.

65. It is also legitimate in my view to have some regard to international instruments to which the State is a party, even where they have not been incorporated into domestic law. Although not legally enforceable in this jurisdiction, such instruments may serve to some extent as statements of Irish public policy.

66. Finally, as with any question of policy, it is necessary for the Court to have regard to the practical consequences of its decisions. As noted already, judges are not the best-placed branch of the State to assess policy considerations. For this purpose I propose to give some consideration to current practices on the part of the executive. These do not have decisive effect on any given issue but may cast light on the practical issues.

The Constitution
67. The original version of Article 41 read as follows:

Article 41 - The Family

        1 1˚ The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

        2̊ The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

        2 1̊ In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

        2̊ The State shall, therefore, endeavour to ensure that mothers shall not be obliged be economic necessity to engage in labour to the neglect of their duties in the home.

        3 1̊ The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

        2̊ No law shall be enacted providing for the grant of a dissolution of marriage.

        3̊ No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

68. Article 41.3.2 was removed by the Fifteenth Amendment, 1995 and replaced by a provision permitting legislation providing for the dissolution of a marriage in certain specified circumstances.

69. The Thirty-fourth Amendment to the Constitution, 2015 introduced a new sub-Article 4 to Article 41 that reads in full as follows:

        “Marriage may be contracted in accordance with law by two persons without distinction as to their sex”.

Article 40.1
70. Article 40.1 reads as follows:
        1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

71. Article 40.1 must be read harmoniously with Article 41, and must therefore be seen as embedding the principle of equality before the law into the legal institution of marriage. As an example, in C.M. v. T.M. (No.2) [1990] 2 I.R. 52 the High Court (Barr J.) held that the common law rule that a wife’s domicile depended on that of her husband was repugnant to the Constitution, declaring it to be

        “a relic of matrimonial female bondage which was swept away by principles of equality before the law and equal rights in marriage as between men and women which are enshrined in the Constitution”.
72. In so ruling Barr J. relied in particular on Article 40.1 and 40.3. This judgment was approved by this Court in J.W. v. J.W. [1993] 2 I.R. 476 in which Hederman J. said:
        “Although the married state could be regarded as a social function for the purposes of the second paragraph of Article 40, s. 1, it is equally so for both spouses and there can be no sex discrimination between equals. The former judge-invented rule of dependent domicile of a wife discriminated against, (or distinguished between the spouses) on the grounds of sex only. In the second paragraph of Article 40, s.1 a distinction on the grounds of social function is reserved by the Constitution to ‘enactments’. A common law rule does not so qualify.”
73. Egan J. said:
        “In my opinion, the so-called dependency rule in relation to married women quite clearly resulted in married women not being held equal with single women or with men, whether married or single, and this inequality had nothing to do with differences of capacity, physical or moral, or social function. There is nothing whatever in Article 41 which could or ought to disentitle a married woman to the equality which is guaranteed to her by Article 40.”
74. In a similar vein, Blayney J. referred to the judgment of Walsh J. in Quinn’s Supermarket Ltd v Attorney General [1972] I.R. 1 and continued:
        “In the light of this statement of the manner in which Article 40, s.1 should be interpreted, I have no doubt that if the rule were still in force a married woman would not be held equal before the law. She would be in a position of inequality firstly by comparison with her husband, and secondly by comparison with women who are not married. As between the married woman and her husband, he would retain the independent domicile which he enjoyed before his marriage while his wife would lose the independent domicile which she had previously enjoyed. Furthermore her independent domicile previously enjoyed would become converted by law into a domicile dependent on that of her husband. So the law would clearly be giving unequal prominence or importance to the husband by providing that it was his domicile which would be the common domicile of the couple throughout their marriage…

        The inequality inherent in the rule is not simply theoretical. It can give rise to practical difficulties for a married woman.”

75. The passage cited from Quinn’s Supermarket is at p. 13 of that judgment and reads as follows:
        “The provisions of Article 40, s.1, of the Constitution were discussed in the decision of this Court in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567. As was there decided, this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow.”

Public policy in legislation
76. Section 2(2) of the Civil Registration Act 2004 provides that there is an impediment to a marriage under the Act if, inter alia, one of the parties is, or both are, already married.

77. Bigamy is an indictable offence under the Offences Against the Person Act, 1861.

78. In the area of family law, certain reliefs such as barring orders (under the Domestic Violence Act 1996) or lump sum maintenance payments under the Family Law (Maintenance of Spouses and Children) Act 1995 are more readily available to spouses than to non-married persons.

79. Unmarried fathers have until recently had very limited rights in respect of their children under Irish law. Guardianship rights have been enhanced under the Children and Family Relationships Act 2015, in circumstances where specified minimum periods of cohabitation are established. Otherwise, a father’s rights are dependent on agreement with the mother or the making of a court order appointing him a guardian.

80. Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 confers rights on qualifying cohabitants as against each other in relation to matters such as maintenance and provision out of an estate. A qualifying cohabitant is “one of two adults….who live together as a couple in an intimate and committed relationship”.

81. Cohabiting couples also have certain rights similar to those of married couples under the Social Welfare code. This system works on the basis of classifying one person as the primary claimant and the other as the “qualified adult”. However, the rights are not as extensive as those of married couples - for example, in the event of the death of the primary claimant a qualified adult will not receive a widow’s or widower’s pension.

82. The policy of the Refugee Act 1996, in which this case has its origin, is to favour family reunification for refugees. Spouses and children of refugees are to be admitted to the State, and to enjoy the same rights as the refugee. This is in keeping with the State’s adherence to the United Nations Convention on the Status of Refugees and Protocols thereto.

The executive
83. At the request of the Court, the Attorney General has answered a number of questions as to the attitude of State authorities in various contexts to issues arising from polygamous marriages.

84. Two questions specifically concerned the status of spouses in actually or potentially polygamous marriages for the purposes of family reunification. It appears that at the time when the second wife was admitted in 2001, the practice of the Minister was to admit the spouse in respect of whom the first application (in point of time) was made. It was believed that the refugee in question was entitled to choose which wife he wanted to join him. The marriage was thereafter treated as monogamous. However, this policy has changed “in light of the nature of applications being received and judgments of the Courts”. The attitude now would be that neither wife would be admitted, because neither would be recognised as a spouse. Admission would also be refused to a spouse from a marriage that was actually polygamous at any time in the past, even if it is now monogamous in practice as the result of, for example, divorce.

85. If the refugee has only one spouse, it seems to be assumed that he has lost the capacity to further marry by acquiring a domicile of choice in the State. The spouse will therefore be admitted.

86. For the purposes of the Taxes Consolidation Act 1997 the Revenue Commissioners consider marriage to be a union between two individuals, neither of whom was already married at the time of the marriage. In general, where two individuals opt to be jointly assessed, the Revenue will assume that they are validly married unless there is reason for doubt. A second marriage would not be recognised as valid.

87. The Department of Social Protection takes the approach, in effect, of assuming that couples are validly married unless there is reason to believe otherwise. It does not concern itself with the marital status of a child’s parents, or whether a father has legal guardianship rights, but makes payments in respect of a dependent child to the parent with whom the child resides.

88. This Department has not, to date, had to deal with an actually polygamous marriage but the assumption is that the second marriage would not be recognised.

Public policy - other sources

European Union Law
89. There is no instrument of European Union law binding on the State on this issue. Ireland, along with the United Kingdom and Denmark, did not adopt the Directive on Family Reunification (2003/86/EC). However, it is worth noting that while the Directive emphasises the importance of family reunification as a means of facilitating sociocultural stability and economic and social cohesion, it explicitly accepts that restrictive measures are justified in the case of polygamous households. This is for the purpose of compliance with the values and principles recognised by Member States, in particular with respect to the rights of women and children. Article 4.4 provides that if a sponsor has one spouse living with him in a Member State, the Member State “shall not” authorise the family reunification of a further spouse.

The European Convention on Human Rights and Fundamental Freedoms
90. By virtue of s. 2 of the European Convention on Human Rights Act 2003, a court interpreting and applying any statutory provision or rule of law is required, in so far as is possible and subject to the rules of law relating to such interpretation and application, to do so in a manner compatible with the State’s obligations under the provisions of the Convention and certain of the Protocols thereto. Article 8(1) of the Convention guarantees a right to respect for one’s private and family life. Article 8(2) prohibits interference by a public authority with the exercise of this right except such as is necessary in a democratic society for, inter alia, the protection of morals or for the protection of the rights and freedoms of others.

91. In R.B. v. United Kingdom (Application No. 19628/92) the complaint made by the applicant was that the British immigration authorities had refused to grant her mother permission to join her and her father in the United Kingdom. The reason for the refusal was that the father had entered into two marriages and one wife had already been admitted. The relevant legislation specifically prevented the admission of more than one foreign wife. The applicant alleged that her right to respect for her family life had been infringed.

92. The Commission accepted in principle the argument that the refusal of entry amounted to an interference with the right under Article 8. It then examined the purpose of the UK legislation and concluded that its aim was to prevent the formation of polygamous households, the practice of polygamy being unacceptable to the majority of people living in the United Kingdom. The objective of the legislation, therefore, appeared to the Commission to be the preservation of the Christian based monogamous culture dominant in that country. Having regard to the margin of appreciation available to Contracting States in the field of immigration policy, the Commission considered that a State could not be required to give full recognition to polygamous marriages which were in conflict with its own legal order. It noted that bigamy had been a criminal offence in the United Kingdom for centuries. In the circumstances of the case the Commission found that the family life factors in the case did not outweigh the legitimate considerations of an immigration policy that rejected polygamy and was designed to maintain the United Kingdom’s cultural identity in this respect. The interference with the applicant’s rights was therefore in accordance with law and justified as being necessary in a democratic society for the protection of morals and the rights and freedoms of others. The complaint was held to be manifestly ill-founded.

93. Article 5 of Protocol 7 of the Convention (which takes effect as if it were an additional article in the Convention, and is covered by s. 2 of the Act of 2003) provides as follows:

        “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage, and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

The International Covenant on Civil and Political Rights
94. Under Article 3 of this Covenant, to which the State is a signatory, the State Parties undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the Covenant. Article 23.4 requires States to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.

The United Nations Convention on the Elimination of all forms of Discrimination Against Women
95. In 1985 Ireland signed and ratified the UN Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”). By virtue of Article 5, State Parties are obliged to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes. Article 15 requires States to accord to women equality with men before the law and a legal capacity identical to that of men. Article 16 requires inter alia the elimination of discrimination in all matters relating to marriage and family relations, and in particular to ensure that men and women have the same right to enter into marriage, to freely choose a spouse and to enter into marriage only with their free and full consent.

96. As stated earlier, the basic rule in relation to a foreign marriage is that it will be recognised here if it complied with the relevant foreign law, subject to the exception that it will not be recognised if it offends against the public policy of this State.

97. In my view Hyde v. Hyde can no longer be considered as defining marriage for the purposes of Irish law. That judgment, delivered 160 years ago, was based on a principle (the identification of legal marriage with Christian marriage) and on policy considerations (the difficulty of applying the then matrimonial law remedies to a potentially polygamous marriage) which cannot be said to fit into the current constitutional or legislative landscape. The term “Christendom” is itself rather old-fashioned, but whether or not it would be appropriate to describe Ireland as a Christian State is not the issue - the question before us is a matter of law. The assumptions that underlie the decision in Hyde v. Hyde, and the constituent elements of its definition of marriage, have been cut away to the extent that it serves no useful purpose.

98. For the same reason, it seems to me that some of the more recent authorities from the 1980s and 1990s have been overtaken by the amendments to the Constitution. The combination of the introduction of no-fault divorce and, in particular, the amendment of the Constitution providing for the introduction of same-sex marriage have resulted in a legal institution of marriage that cannot be described in terms of traditional Christian doctrine.

99. This does not mean that the concept of marriage no longer has a legal meaning, or that the legal meaning is a concept flexible enough to accommodate any variation no matter how different to the traditional model. Despite the factual reality that many couples do not choose to marry, marriage remains a central feature of Irish life for the majority. The constitutional pledge to guard the institution of marriage with special care remains in place and must be accorded full respect.

100. The Thirty-fourth Amendment, when introducing the right to same-sex marriage, clearly did not create a separate version of marriage for same-sex couples. It is also clear that it did not create a new version of marriage for all couples. It enabled the inclusion of same-sex couples into an already existing structure. Looking at the plain wording, the amendment achieved this on the basis of a core assumption that a marriage, before and after the amendment, is a union between two people.

101. In my view the defining characteristic of marriage as envisaged by the Constitution in this era is that it entails the voluntary entry into mutual personal and legal commitments on the basis of an equal partnership between two persons, both of whom possess capacity to enter into such commitments, in accordance with the requirements laid down by law. (This is not a case in which questions of voluntariness and capacity, which might in the case of some foreign marriages raise issues of approbation or retrospective consent, need consideration). All of the remedies for marital breakdown, and all of the legal consequences of the status of marriage in the fields of taxation, social welfare and succession law flow from that equality and mutuality of commitment.

102. If that view of marriage is correct, then that is the model to be guarded, as the Constitution requires, with special care. The question then is whether that obligation compels the courts to refuse recognition to either potentially or actually polygamous marriages.

103. The arguments of principle and policy against granting recognition to a potentially polygamous marriage, as set out in Hyde v. Hyde, have obviously lost most, if not all, of their relevance in the modern era. Apart from the religious aspect (which, as I have said, I consider to be no longer a primary characteristic of the Irish legal institution of marriage), Lord Penzance’s focus in this regard was very much on the practicalities and the difficulties of applying English forms of matrimonial relief to such marriages. But modern family law legislation has created an entirely different structure of remedies, with far less emphasis on the establishment of fault (as described by the concept of “marital offences”) and far greater emphasis on dealing on a just basis with the consequences of marital breakdown. The action for restitution of conjugal rights, which enabled a spouse to obtain a court order directing the other spouse to return to the marital home, was abolished by the Family Law Act 1988 and had been a dead letter long before that. There is now no question of compelling a person, by court order, to continue to live within a marriage that has broken down. The right to leave the home and seek alimony in the event of proven misconduct has been replaced by no-fault remedies, including a right to divorce based primarily on the fact of separation.

104. Under the rules of private international law, recognition of a marriage entered into in compliance with a foreign legal system should be refused only if refusal is required for the protection of the values and principles represented in our public policy. The question then is whether it is “substantially incontestable” (Dicey, Morris and Collins) that discernible harm would be caused to the public; or that a threat would be posed to the institution of marriage as contemplated by the Constitution, such as would require the refusal of recognition to potentially or actually polygamous marriages.

105. In my view there is no such harm or threat in the case of a couple living in this State in a monogamous relationship, arising purely out of the fact that they married under a system of law that permits polygamy. There is no principle at stake here, no damage to the core values of our constitutional concept of marriage, that could be said to require the withholding of recognition. Nor can I see that there is any practical difficulty in applying the current range of legislation, either civil or criminal, to a couple living in the State in a marriage that is de facto monogamous. Indeed, it seems apparent that State agencies in practice treat such marriages as valid save where doubts arise.

106. On the other hand, it seems likely that there are significant practical policy disadvantages in denying recognition to such marriages. According to the last census figures there are over 60,000 Muslims living in the State. It can be presumed that a significant proportion of this population is made up of married couples, and that many of the marriages took place under a law that permits polygamy. There are likely to be other persons here who may have contracted marriages under a customary or personal law that permits polygamy, but who live monogamously. However, going by the responses to the Court’s questions from the State authorities, it does not appear that there are many instances of actually polygamous households in this State. In those circumstances, it seems to me that a refusal to recognise the validity of potentially polygamous marriages that are de facto monogamous would be likely to cause distress, disruption and confusion amongst a significant number of people living in the Irish community. I cannot see that there is a corresponding gain in terms of the protection of marriage.

107. Apart from the rights of spouses as against each other in terms of family law, there are potential issues in respect of parental rights and in respect of succession, taxation and social welfare entitlements. There is no good reason to leave couples in these circumstances in doubt as to their right of access to the full range of rights available to married people generally. Importantly, in the area of immigration, to refuse admission to a spouse simply because the marriage was potentially polygamous would damage the policy of family reunification with the aim of successful integration into the State.

108. The suggestion was made in the course of the hearing that perhaps a potentially polygamous marriage could be converted into a monogamous marriage by the acquisition of a domicile of choice within the State. The Attorney General has in fact, in the course of this appeal, argued both sides of the question whether the Court could adopt such a view. However, I would not consider this to be a particularly satisfactory or clear cut solution. Firstly, it would be futile in the case of a couple where one spouse is here and the other seeks admission. Secondly, while it may be that many immigrant couples have acquired a domicile of choice, but many may not. In many cases it will be unclear at any given point in time. Whether they have or have not acquired a domicile here, I can see no reason in principle or policy to distinguish between their legal rights in this fashion. Such a distinction is likely to lead only to further litigation between individuals and the State, or indeed between family members, without in any way advancing the protection of the institution of marriage.

109. I would therefore consider that a marriage that is potentially polygamous only is capable of being recognised as legally valid in this State. If that is so, it seems to follow, for the same policy reasons, that it should be recognised as of the date of inception.

110. The next question, then, is whether the recognition afforded to a potentially polygamous marriage should be withdrawn if the husband contracts a further marriage.

111. In my view it should not. Quite apart from an uneasiness with the notion that a legal status attached to one person can be lost retrospectively through the actions of another person rather than through a legal process, the logic of the preceding discussion would lead to the conclusion that the position of the first marriage remains as it was - that is, that it did not and does not present a threat to the Irish institution of marriage. The withdrawal of recognition would interfere unnecessarily with the rights of at least some of the individuals concerned and would go further than necessary for the protection of the institution of marriage. It is not required by public policy.

112. That is sufficient, strictly speaking, to dispose of the question before the Court. I would grant a declaration, as sought, that the marriage between H.A.H. and S.A.A. was valid as of the date of its inception. However, as I said earlier, the issues raised in the case go somewhat further and I think it necessary to express a view on the status of the second marriage. Counsel for the second wife (who, it will be remembered, was admitted to the State and is now a citizen) has submitted that Irish law should recognise actually polygamous marriages and that she is validly married to the husband.

113. Having regard to the model of marriage now provided for in the Constitution, and its essential characteristics, it seems to me to be clear that the institution of polygamy as such is not contemplated by the Constitution. The Thirty-fourth amendment puts the question of the constitutional definition beyond doubt - marriage, as far as the Constitution is concerned, must in all cases be seen as a union between two people.

114. Reading Article 41 in conjunction with Article 40.1 leads to the same conclusion. If all persons are to be considered as equal before the law pertaining to marriage, and if marriage is a partnership based on equality of rights, mutual commitments and mutual respect, there is no room for a version of marriage which, by its structure, allows the husband to have more than one spouse. To give legal recognition to such a structure would be to give legal effect to discrimination and subordination in a relationship where the principle of equality should hold sway. This would be so as between men and women - it would also have the anomalous effect of introducing a new discrimination against same-sex couples who, obviously, would never have the legal capacity to enter into polygamous marriages. Recognition of such marriages would also be contrary to the principles of the international instruments discussed above.

115. I therefore consider that recognition of an actually polygamous marriage would be contrary to a fundamental constitutional principle and therefore contrary to public policy.

116. I form this opinion as a matter of Irish law, but it is also consistent with the international commitments made by the State as referred to above. I would therefore take the view that any second or subsequent marriage entered into while the marriage to a first wife is in being cannot be recognised as valid in Irish law.

117. It is necessary to stress that the view expressed in this judgment does not compel the State or its agents to deny all legal effect to polygamous marriages in all contexts. There is no particular reason why a marriage should not be given recognition for certain purposes, as has been done in many instances in the courts of the United Kingdom. This also appears to be the case in the United States of America (see the Second Restatement of Conflict of Laws, 1971 s.284), where the parties to an actually polygamous marriage may be denied the right to cohabit in a State without prejudice to the possibility of recognition of the legitimacy of the children and the economic interests of the spouses.

118. In the area of immigration, which is where this litigation has its roots, it may well be desirable to have some regard to the reality of familial bonds. I note that it is the policy of the Department of Justice, when considering an application for family reunification in respect of the children of a refugee, to disregard the marital status of a child’s parents. That is in my view entirely correct. I would simply add that there is probably scope, having regard to the powers of the Minister, for a discretionary approach to the question whether the mother of a child should be admitted even where she is not recognised as a wife of the applicant. However, I stress again that these are policy matters which are, primarily, for the Oireachtas to consider.

119. The Court is asked in this case to address a difficult human situation, but, as in all cases, its task is to identify and state the law.

120. The rules of private international law require the State to recognise a marriage validly contracted under a foreign system of law unless such recognition is prohibited by our public policy. In my view, for the reasons set out in this judgment, 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. There is 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. 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. I would therefore allow this 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.

121. In this judgment I have 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, this does not necessarily mean that such a marriage can never have legal consequences.

122. The conclusions reached in the judgment must be read as being subject to the right of the Oireachtas to consider and legislate for issues of public policy, subject to and in conformity with the Constitution.

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URL: http://www.bailii.org/ie/cases/IESC/2017/S40.html