The media is currently filled with discussion of marriage rights and recognition, not least because of the historic US Supreme Court ruling yesterday on the Defence of Marriage Act in California. Marriage is something that is deeply ingrained in religion and culture and marriage practices vary around the world. In Ireland, the struggle for marital recognition is not confined to the LGBT community. In Muslim societies, culture, tradition, customs and formalities are often very different to what Ireland is used to or accept as forming what we recognise to be a valid marriage. This poses a number of difficulties for couples who now live in Ireland and whose marriages or divorces were carried out under a different set of rules.
Legal recognition in Ireland of Islamic marriage practices can have far-reaching consequences for family reunification in immigration law. Examples of the practices that prove problematic in Irish law include polygamous marriages and Muslim divorce. In some Islamic countries it is permissible for a man to have multiple wives or to obtain a unilateral divorce without governmental or judicial involvement.
Academics have noted three stages to the recognition of foreign marriages in Ireland. The first of these is capacity to marry, and a person lacks capacity to marry if they have a prior marriage that is still valid. The second required element is that the marriage was legal in the jurisdiction where it was celebrated. Thirdly, the marriage must not be unrecognisable from the Irish idea of marriage.
In the case of H v A it was held that the polygamous marriage of a Lebanese man in his native country couldn’t be recognised under Irish law. However, if a marriage is potentially polygamous but monogamous in practice then the marriage can be recognised in Ireland. In Hamza v Minister for Justice Equality and Law Reform it was held that a couple who were married under a law that allowed polygamy but weren’t parties to a polygamous marriage could have their marriage recognised.
However, the law on polygamy is not without anomaly. As counsel for the respondent pointed out in H v A, if a man is married to more than one woman in his home country, the courts will deem that those marriages are null and void. However, if a man marries one woman in his home country and then marries another woman in Ireland then the latter marriage will be held to be void.
The courts have not yet adjudicated on whether a talaq, a unilateral divorce obtained in an Islamic country, will be recognised under the Domicile and Recognition of Foreign Divorces Act 1986. S5 (7) of that Act refers to the necessity for certain proceedings for a divorce to be valid but it remains to be seen whether the procedure for obtaining a talaq will meet these requirements, as the divorce is obtained unilaterally without the involvement of state agencies.
Both of these situations have an impact for family reunification in immigration law. In Irish law, a person who has successfully sought asylum can apply for a visa for their spouse to live in Ireland. If Irish law does not recognise the validity of their marriage, this will clearly thwart the application process. For these purposes it seems clear that a polygamous marriage will not be allowed, whereas a potentially polygamous one will be. More clarity on the status of Islamic divorce would be welcome, as some clients of Brophy Solicitors are left in a state of uncertainty about whether their second marriage will be recognised as valid for the purposes of reunification. We are receiving more and more requests to appeal visa refusal decisions where applicants have been refused permission to join their Irish/lawfully resident spouse based on the fact that their marriage is not a valid marriage. This includes cases where the applicant and their spouse have children together.