On 15th June 2017, the Supreme Court case of H.A.H v S.A.A and Others ruled that the first marriage of a Lebanese man with two wives would be held as valid under Irish law, while his second marriage and all potentially subsequent marriages would not be legally recognised. The appeal followed from the case’s previous ruling in the High Court in 2010 which held that polygamous marriages were incompatible with the understanding of marriage in Ireland and in the Irish Constitution, and were thus entirely invalid.
This case bears importance for family reunification cases for those in polygamous relationships, applying for spouses to join them in Ireland.
The appellant husband is a refugee and naturalized Irish citizen, and came to Ireland as an asylum seeker in 1998. After he had been recognised as a refugee, his second wife and some of his children joined him in Ireland, under the Refugee Act 1996, which gives refugees the right to apply for their family to join them. She is now a naturalized Irish citizen.
In 2002, after he was granted Irish citizenship, the husband applied for his first wife to join him, but this request was denied by the Minister for Justice. The husband then began judicial review proceedings to quash that decision. The current case deals with both the Refugee Act 1996, which entitles a refugee to be joined by family members, and the Family Law Act 1995 which entitles a spouse to make an application to declare that a marriage was valid at its inception.
The Attorney General argued that neither the first nor second marriage should be legally recognised, as public policy in Ireland objects to the potential effects of polygamous marriages.
Ms. Justice O’Malley, who gave the leading judgment which was supported unanimously by the six other judges, held that a marriage that is capable of being potentially polygamous has legal recognition in the State, and that this legal validity will not be lost retrospectively if the husband contracts another marriage. As for any marriages subsequent to the first in a polygamous relationship, these would not be held valid, as to do so would contravene the principle that “marriage is a partnership based on equality of rights”. This means the second wife’s submission- that she was legally married to the appellant and that Irish law should recognise actually polygamous marriages- fails.
The judge, however, stressed that this did not mean that polygamous marriages would be denied legal effect in all circumstances. She also made special note of family reunification issues in immigration law, saying that in this area “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.” This discretionary approach may help curb some of the difficulties experienced by families when applying for family reunification that do not fit the typical family portrait.
It is interesting to compare the emerging legal position on polygamous marriages in Ireland to the well established position in the UK.
The Immigration Rules Part 8 (para 278-296) relate to family reunification issues for polygamous relationships.
If a marriage is one that is recognised in the country in which it took place, was properly executed according to the laws of that same country, and there was nothing in either party’s country of domicile that restricted them from entering into the marriage, then the marriage is valid whether or not it is polygamous.
The application of a spouse within a polygamous marriage for leave to enter/remain in the UK should be refused if the applicant’s husband is also married to another woman who has entered the UK since marriage. Therefore, it is not the order in which polygamous spouses marry that is crucial, but the order in which they go to the UK. This is according to Annex G of the Immigration Rules (Part 8).
Children of polygamous spouses
If a polygamous spouse is disqualified by the Immigration Act/Rules from entering the UK, any children he or she had by that spouse may not qualify for entry to the UK, depending on the circumstances and in particular the operation of the Legitimacy Act 1976.
Polygamous spouses entering in their own right
A polygamous spouse may have an entitlement to enter the UK in his or her own right – for example as a returning resident, as a visitor, or as a student. They will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if it would result in the formation of a polygamous household in the UK.
Termination of previous marriage
Even where it is suspected that a “divorce of convenience” has taken place, entry clearance cannot be withheld from a second wife, even if a polygamous household will be created as a result. A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which would otherwise disqualify him or her) has been dissolved or terminated by the death of the spouse concerned.
Potentially polygamous marriages
Potentially polygamous marriages where the husband/wife is domiciled in the UK have been considered valid in UK law since in 1982. In cases where it is clear that the marriage is actually monogamous, potentially polygamous spouses can now be issued with husband/wife entry clearances, subject to the usual criteria of the Immigration Rules being met. Such marriages will, however, be made void by any subsequent marriage by one of the parties or by an annulment.