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  IEHC 427 and Hassan & Another v. MJELR  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 State would have singularly failed in its constitutional duties in this regard if it permitted an open-ended ground of objection to a proposed marriage to be made at the last minute, without the necessary procedural safeguards, especially in circumstances where the lodging of such an objection would inevitably have a suspensive effect so far as the proposed marriage is concerned .
The recent judgment of Hogan J. in Izmailovic v. Commr of An Garda Siochana considers the legality of a tactic deployed by the gardai in the so-called ‘war against sham marriages’. I have blogged several times on this issue (see here, here and here). Last year, it was reported in the national press that the Garda National Immigration Bureau had developed ‘Operation Charity’, under which the gardai sought to detect and prevent civil marriages where they believed that one partner was entering the marriage for the purposes of acquiring EU residency rights under Directive 2004/38/EC.
I have written two posts for HRinI about the Irish approach to marriages of convenience. In January, I noted that the General Registry Office and the Department of Social Protection had met to develop a list of indicators of ‘sham’ marriage which could be provided to registrars. These were published on September 2nd. I also mentioned the GNIB’s ‘Operation Charity‘, which has since been challenged in the High Court. As regards criminal law, the Minister for Justice has suggested that where an individual is coerced into marriage, the Non-Fatal Offences Against the Person Act will govern but there are no clues as yet as to what ‘preventative’ civil legislation on ‘sham marriage’ would look like. There is growing public awareness of the potential criminal dimensions of some marriages of convenience. Questions have been asked in parliament about the connections between marriages of convenience and human trafficking. Some papers (see here, here and here) have run interviews with Latvian women who have been coerced into marriage, exploited and abused.
We are delighted to welcome Andrew Hayward of Durham Law School back to Human Rights in Ireland to discuss the landmark decision in Radmacher v Granatino. Andrew is a Lecturer in Law at Durham University and has previously posted on cohabitation here.
On Wednesday 20th October 2010 the Supreme Court handed down the eagerly awaited decision in Radmacher v Granatino  UKSC 42. It addressed one of the hottest current debates in family law namely the enforceability of prenuptial agreements in England and Wales (currently being investigated by the Law Commission). More specifically the decision centred on the relevant principles utilised by a court when considering what weight should be attached to a prenuptial agreement. This ruling represented arguably the most important family law case decided by the Supreme Court and the most significant judgment dealing with ancillary relief matters since Miller v Miller, McFarlane v McFarlane  UKHL 24. Continue reading “The Fairness in Enforcing a Broken Promise: Prenuptial Agreements”
Governor Arnold Schwarzenegger last month signed a new law (SB 1188), which will come into force in January. The law aims to combat discrimination faced by parents with disabilities in child custody proceedings. Parents with disabilities often face claims that they are unable to care for their children on the basis of their disability. The disability rights bodies in California (who lobbied for this reform) believe that parents with disabilities are marginalised in family court proceedings and that their disability is used as a way to contest custody and visitation rights. The new law requires that decisions on custody and Continue reading “California Introduces New Law to Combat Discrimination Against Parents with Disabilities”
We are delighted to welcome this guest post from Dr. Nicola Barker; a lecturer in law and director of the LLM programme in Gender, Sexuality and Human Rights at Keele University, UK. She is author of Not the Marrying Kind: Feminist Critiques of Marriage and the Legal Recognition of Same-Sex Relationships (forthcoming, 2011).
I was recently at an academic conference in Vermont, which was a celebration of the 10th anniversary of the Vermont Civil Union and 1st anniversary of same-sex marriage in the state. Most of the conference participants were happy to celebrate marriage as an achievement of equality and access to numerous important legal rights (and responsibilities) of marriage. I can understand those sentiments, particularly in a country where access to health care may be dependent on the person one chooses as a spouse having employment benefits and spousal coverage, but I cannot join in the celebration. Likewise, I can understand the celebrations in Ireland following the introduction of civil partnerships but I do not share the jubilation.
So-called ‘sham’ marriages are in the news again. At the beginning of the month, British newspapers carried the story of Rev. Alex Brown, who conducted hundreds of marriages designed to enable individuals to circumvent immigration regulations. Two further vicars have since been arrested on suspicion of similar offences as the UK Border Agency continues its ‘crackdown’ on marriages of convenience. Here in Ireland, Denis Prior, the superintendent marriage registrar for the HSE eastern area claims that up to 15% of civil marriages contracted in Ireland are ‘shams’ aimed at circumventing immigration law. I blogged about Irish efforts to close the so-called ‘marriage loophole’ back in January when the media began to report the Garda National Immigration Bureau’s initiative ‘Operation Charity‘. The Operation involves the Bureau in objecting to marriages under s. 58 of the Civil Registration Act 2004. A couple intending to get married must have notified the registrar of that intention 3 months prior to the ceremony – which gives time for an objection to be lodged with the registrar. An objection triggers a minor or more serious investigation, depending on the content of the objection. The gardai have lodged objections to 57 marriages in the last nine months. However, the existing legislation at most empowers registrars to investigate whether an impediment to marriage exists which the couple have not declared and it is not an impediment to marriage that the couple are marrying for immigration purposes. The Office of the Civil Registrar, therefore, has adopted an appropriately cautious approach to Operation Charity, though it appears to support the initiative in principle. There is no offence under Irish law of contracting a marriage of convenience, and so Operation Charity instead involves the gardai in investigating participants in the hopes of discovering ancillary offences, such as bigamy or immigration offences, some of which have grounded the detention and deportation of would-be husbands. Continue reading “Preventing Marriages of Convenience in Ireland”
We are delighted to welcome this contribution from Andrew Naurice, on behalf of Irish Pink Adoptions, to the carnival on the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Written in narrative style, the post is preceded by an explanatory note from the author.
Explanatory note: Irish Pink Adoptions is a support group for Irish “pink” households. Because we cannot expose the identity of our members let’s gather, from their shared experience and testimonials, what it would be like to be a pink household adopting in Ireland today. In this post we hear from a fictional individual—Tighe—about how he feels about the Civil Partnership, and how it impacts the constitutional rights of his adoptive daughter.
We are family… why not?
My boyfriend and I are happily married. We are not legally married, but we live a happy couple life, and we are treated by our families as spouses. My husband is my parent’s favorite son-in-“law”. My sister looks up at our relationship as an example of harmony, and my nephews admire my husband as a role model. My mother-in-“law”’s priest thinks that her god will not be offended by our love as long as we are faithful to one another and that we raise our child to be a good person. The government used to look down at us, treat us as second class citizens: our relationship was not recognized. The HSE confirmed what our family knew: we are family; we are family to our adoptive child. And we can be as good parents as any other parents. It is the HSE saying it, not some communist church-bashing gay lobby. They accept that our pink household can be in the best interest of our child.
Because we were not allowed to marry, the HSE could only allow one of us to adopt: but they assessed us as a couple, as one single household, not caring for a second that we are a same-gender household. They are not bigots. They knew children are not raised in isolation, and that we had family relations and friends who would bring diversity and gender balance to our child. They never took into consideration the baseless arguments of some people who mimic religion without understanding love, and who cannot be trusted with the best interest of children. They could not allow us to adopt jointly… because they cannot allow any unmarried couple to adopt jointly. The marriage laws denied the HSE the possibility to offer what they knew was in our daughter’s best interest: the married us.
Last month, a French-born convert to Islam (pictured left with Lies Hebbadj) was fined 22 euros in Nantes for driving while wearing a niqab on the basis that it was an impediment to her safe driving. This story has been elevated to the point where it threatens to prompt a change in French nationality law. Brice Hortefeux, the Minister of the Interior, called for her husband Lies Hebbadj to be stripped of his French nationality, complaining that Mr. Hebbadj was living in France with four wives and their children and defrauding the French state by having his wives claim welfare payments as lone parents. The Associated Press here raises the question of men ‘profiting’ from the welfare system by claiming benefits for multiple wives and children. It cites the experience of the organisation Nouveaux Pas which assists women who approach it seeking to leave polygamous marriages.
The debate over the notion of the “de facto family” under Irish law has again emerged following yesterday’s rejection of an unmarried father’s challenge regarding the legality of his former partner’s move to England after the relationship had broken down by the High Court and subsequent appeal by the Labour Party for a review of the law regarding guardianship. The case was brought by a man against his former partner of ten years who had moved to England with their three children in July last year arguing that the removal of the children breached his rights as parent. Though the case was described as “reprehensible” by Mr. Justice John MacMenamin, the court maintained that there was no legal basis for the father’s challenge under Irish law as he had not been married to his former partner or applied for guardianship of the children before the relationship ended. As he had not exercised his right to apply for custody, guardianship and right of access at the District Court, Justice MacMenamin stated, there was no legal basis for the challenge under Irish law, Article 5 of the Hague Convention on Child Abduction) or Article 8 of the Brussels Regulation.
However, in addition to the question of the family rights of unmarried couples and the existence of the “de facto family” this case also raises significant questions regarding the importance of parental access after family breakdown and the need for the living arrangements of families post-breakdown to receive further consideration. At the heart of this case was the problem of access and a challenge to the legality of a change in the living arrangements of children when parents have separated.
The fundamental basis of the father’s complaint is that by moving to England his former partner had prohibited him from accessing his children and that this impinged on his rights as parent. What is important here is that the father was not requesting that he be awarded sole custody but that the courts compel his former partner to return to Ireland. As well as the question of the rights of unmarried fathers, this case raises a second issue that has not been discussed – what constitutes acceptable living arrangements for children after family breakdown has occurred. This is particularly worrying, not only in light of this case, but also given the fact that changes in living arrangements post-family breakdown is the biggest cause of stress for children (see this report on family breakdown and outcomes for children). Poor housing, restricted access to parents and unstable living arrangements after household dissolution can have significant, long-term repercussions for the health and well-being of children and can augment the problems associated with parental separation.
As it stands, despite recognising the need to ensure that the transition to stability after household dissolution in the Report of the Commission on the Family, family policy in Ireland has made no reference to what this will involve and, as this case highlights, this is an area that needs significant consideration.