In recent years, the Irish High Court has handed down a number of judgments which clarify the position of some Islamic marriage practices at Irish law. To summarise the story so far:
- Hassan & Another v. MJELR  IEHC 426 establishes that some foreign religious marriages can be recognised at Irish law even if they do not comply with the civil law of the country where they are contracted.
- H v. A  IEHC 497 apparently establishes that an actually polygamous marriage contracted abroad cannot be recognised at Irish law. However, Hamza & Another v. MJELR  IEHC 427 confirms that Irish law can recognise a marriage which is simply contracted under foreign law which permits polygamy provided (i) neither spouse was domiciled in Ireland at the time of marriage and (ii) no second spouse has been taken.
- Hamza & Another v. MJELR  IEHC 427 confirmed that a foreign proxy marriage could be recognised at Irish law, especially where neither spouse was domiciled in Ireland at the point of marriage.
Last December, in Aslam v MJE  IEHC 512, Hogan J. picked up the thread of Hamza and considered whether a proxy marriage concluded abroad (in this case in Pakistan) could be recognised at Irish law even if one spouse was domiciled in Ireland at the time of the ceremony. Unlike H v. A this is not a case about the civil status of marriage. It is a case about marriage and marriage-like relationships and their effects in asylum and immigration law. Hogan J.’s jurisprudence has made a key contribution to our understanding of this issue; see here and here. This judgment involves perhaps his most generous statement on the bounds of marriage so far, and is important for its broad statement of the attitude which the state should adopt to foreign marriages which have a customary or cultural dimension. It fuses the line of judgments set out above with his frequent affirmations of the importance of the status of marriage as an anchor to the state where an individual might otherwise be deported, jeopardising or severing family relationships:
The essential point here is that the Constitution protects the fundamentals of marriage and it insists that the State respects the essence of that relationship. It is not indifferent to the plight of those who have been forcibly separated by State action and, adapting freely the language of a famous Bach chorale, it sees to it that these rights are available to us for our protection in our hours of deepest need. That is very reason why these rights are deemed to be fundamental and it behoves the judicial branch of government to ensure that these constitutional rights are taken seriously so that… “they are given life and reality”
Hogan J. noted that “[j]udged by the standards of Irish law, [proxy marriage] seems quite unorthodox and susceptible of abuse. Marriage by proxy is nevertheless a deep seated feature of the Islamic tradition and our conflict of law rules should be open-minded, tolerant, flexible and accommodating of different legal cultures and traditions.” Hogan J. locates this obligation of tolerance, flexibility and accommodation in Article 29 of the Constitution, which expresses the state’s commitment to “friendly cooperation amongst nations founded on international justice and morality”. He cites O’Donnell J. in Nottingham CC v. B  IESC 48 to the effect that the “Irish Constitution does not demand the imposition of Irish constitutional standards upon other countries or require that those countries adopt our standards as a price for interaction with us”.
Taking his cue from this judgment, and from Hamza above, Hogan J. insists that the Irish conflicts of law rules must be applied flexibly and generously; if not in general, then in those cases where the stability of a migrant’s position within the state depends on their marital status. Aslam is an Article 7 Dublin Regulation case. If the heavily pregnant Ms Aslam and Mr Udin were not married for the purposes of Article 7, she could be transferred to the UK and her asylum application processed there. So, Hogan J. sets aside the niceties of conflicts of law:
There are undoubtedly issues here regarding compliance with the lex loci celebrationis and, indeed, the domicle of Mr. Uddin and, perhaps, even Ms. Aslam. Viewed, moreover, from the perspective of traditional conflicts rules, there is insufficient evidence of whether the requirements of local law were satisfied and whether, indeed, the marriage certificate tendered should be regarded as valid. Yet, I can nonethless take judicial notice of the essentials of the Islamic marriage ceremony…[The] essentials of the marriage ceremony were complied with, both for the purposes of Islamic law, and, by extension, the law of Pakistan.
It seems unlikely that this approach would be applied in a civil status case, where ordinary questions of property rights might be at stake. Nevertheless, Hogan J.’s cosmopolitan statement of the role of conflicts of law in this case provides further food for thought.