THE SUPREME COURT
[Supreme Court Appeal No. 128/2011; 130/2011; 135/2011]
IN THE MATTER OF THE FAMILY LAW ACT, 1995
1ST NOTICE PARTY
BY ORDER OF THE COURT
2ND NOTICE PARTY
JUDGMENT of Mr. Justice Clarke delivered the 15th day of June 2017.
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.
4.1 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.