Monday, July 11, 2011

Ireland Rejects Freedom to Marry

According to this, Justice Elizabeth Dunne found that a polygamous marriage was not valid in Ireland, even though it was in Lebanon.

The applicant was married twice in Lebanon, first to the respondent in 1975 and later to the notice party, in 1988. Both marriages took place under Muslim and Lebanese law and all parties are Muslims, whose religion permits a man taking up to four wives. The applicant came to Ireland seeking asylum in 1998 and was granted refugee status in 2000.

He then sought to bring both wives and children to Ireland to reunify his family. The notice party (second wife) and children were given permission to come as his wife and family, and came to Ireland in 2001.

There was no deception...

The second notice party said on affidavit that she knew the applicant was married when she married him in 1988 and that this was acceptable under Lebanese law and Muslim marriage custom. The respondent said she knew when she married the applicant in 1975 that her husband could marry up to three more wives, in accordance with their religion and with Lebanese law.

So what happened?

The submissions on behalf of the applicant and both the respondent and the second notice party stated that the rules of private international law were clear. These were that the validity of a marriage was determined by the domicile of the parties and the place where it was celebrated. Therefore, the polygamous marriage of the applicant and the other parties should be recognised unless there was strong reason to the contrary.

An authority on Conflicts of Law, Dicey and Morris, was quoted stating a marriage which was polygamous would be recognised in England as a valid marriage unless there was some strong reason to the contrary. Counsel for the applicant said the central legal issue here was the rules concerning the conflict of law. It was clear the rules governing the validity of marriage were based on the domicile of the parties, and it was also clear that the marriage at issue here, that in 1975, must be declared valid, he said.

So far so good...

Counsel for the Attorney General said these proceedings may impinge on the State interest concerning the status of marriage as an institution. Public policy had an important bearing on the case, and in Conlon -v- Mohamed it had been stated by the Supreme Court, as a comment in the course of the case, that a polygamous marriage could not be recognised in our law as a valid marriage.

Yes, but things change.

While marriage was not defined in the 1995 Act, to interpret it as including polygamous marriage “would be to give it an interpretation which is simply not compatible with the constitutional understanding of marriage”.To do so would be rewriting the understanding of marriage in this jurisdiction. Therefore, it was not possible to grant the declaration sought.

She added the EU directive on family reunification did not provide for the reunification of families based on polygamous marriages and there was no unified approach in the EU on this question.

Well then why not go with equality?

Some day, future generations will look back and wonder what the big deal was.
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