In November, Mr. Justice Cooke considered two family reunification cases in the High Court which shed some light on the status under Irish law of Muslim marriages contracted abroad. The cases are Hamza & Another v. MJELR [2010] IEHC 427 and Hassan & Another v. MJELR [2010] IEHC 426. Dr. Hamza and Mr. Hassan had obtained refugee status in Ireland, and sought to have their wives join them and reside in Ireland, under s. 18 of the Refugee Act, 1996 (as amended). Both applications had been refused because of doubts concerning the validity of the applicants’ marriages. Dr. Hamza’s application was refused because his Sudanese marriage was considered to be a proxy marriage (because the bride was not present at the ceremony but was represented by a male relative).  Mr. Hassan’s application was refused because it was considered that his Somali marriage, as a religious marriage contracted abroad, could not be recognised as valid at Irish law. The High Court has now confirmed that both marriages could in principle have been treated as valid for family reunification purposes – a question quite apart from that of the applicants’ marital status at private international law.

The High Court in Hamza first considers the relationship between  a foreign marriage declared valid under s. 29 of the Family Law Act, 1995 and a ‘subsisting and real marital relationship” which entitles an individual, as a family member of a refugee  for the purposes of s. 18(3) of the Refugee Act, 1996  to enter and reside in Ireland. For the purposes of s. 18(3)

A refugee who is able to demonstrate the existence of a subsisting and real marital relationship with the person the subject of the application is entitled to have the martial relationship recognised for the purposes of reunification under section 18 unless some reason of public policy intervenes to prevent its recognition. This will be particularly so in cases such as [Hamza] where it can be demonstrated that the relationship has subsisted over many years; that the marriage has been consummated and it is not disputed that there are children of the relationship of whom the refugee is a parent.

Nothing more formal is required – it would be possible for Mr. Hassan -who could not produce a marriage certificate because the civil administration in Somalia had collapsed – to prove that his wife was his family member under s. 18(3). Cooke J. notes that the alternative standard of proof contemplated by s. 18(3) is in keeping with the policy of the UNHCR ([33]-[39]) and is appropriate to refugee cases:

Clearly, it is inevitable that the circumstances which will give rise to applications under the section will frequently involve situations in which formal proof of a marriage ceremony will either be non-existent or impossible to obtain. Almost by definition, the refugee will be somebody who has been forced to flee from a country or region which is in the throes of war or civil strife and in which public or municipal administration may have broken down and records been destroyed.

While  some marriages which meet the requirements of s. 18(3) would also pass the more stringent s. 29 test, the statutes establish very different tests for very separate purposes – s. 29 opens the door to “divorce, remarriage, legitimacy, succession”. We might say, for shorthand, that s.29 is concerned with questions of formal status and s. 18 with the preservation of a subsisting relationship.  It is interesting to note, as an aside, that an individual might, therefore, enter Ireland as the spouse of a refugee under s. 18 and some years later, seeking to divorce under Irish law, might find that the Irish courts lacked any jurisdiction over the marriage because the s.29 test could not be fulfilled (See [16]).

Cooke J. does, however, go on to discuss whether potentially polygamous marriages, proxy marriages and purely religious marriages can satisfy s. 29. It appears that they can.

• In  Hassan the High Court says, following Conlan v. Mohamed that [18] “[i]f the formal requirements of the [jurisdiction in which the marriage was celebrated] have not been complied with, or it is now impossible to establish what those formalities were, or whether they were, in fact, complied with, the [purely religious] marriage may still be capable of recognition as valid in Irish law…” The existence of a common law marriage is determined by the nature of the ceremony undergone and by the parties’ intention to be bound by it.
• Hamza establishes that “a proxy marriage lawfully concluded, according to the law of the locality in which it takes place, will be recognised as valid provided the parties had the capacity to contract it at the time and unless some factor of public policy applies to prevent or to relieve the State from recognising it. This is particularly so where both of the parties concerned were domiciled in the jurisdiction in which the marriage was solemnised so that no issue arises as to the absent party represented by the proxy having been domiciled in Ireland at the time.” ([23]-[29])
• Finally, Hamza considers the status of polygamous marriages under Irish law. The state will not authorise family reunification in respect of more than one spouse of a refugee in accordance with EU law; Council Directive 2003/86/EC.  As regards the questions of private international law contemplated by the 1995 Act, it appears that a marriage contracted under laws which allow for polygamy is capable of recognition ” provided neither party was domiciled in Ireland at the time and neither has also been married to a second spouse, either then or since.” (See [42], especially for the light work made of Conlan v. Mohamed).