19. The substantive application for judicial review was heard by Cooke J. He delivered judgment on 25th November 2010, the same date as his judgment in Hamza and another v Minister for Justice Equality and Law Reform. The learned judge pointed out that he had determined a number of the relevant issues of law in that case. In addition, he had given careful consideration in that case to the much broader question of whether the Minister had adopted a correct approach to the interpretation of s. 18 and, in particular the meaning that should be given to marriage, bearing in mind the family-reunification objective of the section and the difficulty, in the cases of many refugees, of providing satisfactory proof of marriage ceremonies.
20. Cooke J. summarised the essential facts of the case and identified the difficulties facing Mr. Hassan in satisfying the requirement to prove marriage for the purposes of the section in the following passage:
“This is a case in which the applicants are nationals of Somalia, both of whom have fled that country, the first named applicant having arrived in the State in 2003, and been declared to be a refugee the following year. The second named applicant who is the subject of the application for family reunification as the “spouse” of Mr. Hassan, has apparently been living in Ethiopia as a refugee for a number of years. The country of origin information submitted on behalf of the applicants to the Minister demonstrates in detail a fact which is apparent to the general public from frequent news broadcasts, namely, that for more than a decade Somalia has been a failed State in which central and local government and administration have collapsed and where there is no functioning judicial system.
Thus, when the first named applicant applied, in November 2005, to the Minister, under s. 18, for permission for the second named applicant, together with a niece and nephew of his, to enter and reside in the State, he was unable to furnish any certificate or other documentary evidence of the marriage which he claimed had been solemnised between himself and the second named applicant in Mogadishu on 5th December, 1998. The ceremony was a religious one performed by a sheik who had issued them with a certificate which they no longer possessed because it was left behind when they left Somalia. The marriage could not be registered because of the absence of any civil registration system due to the conflict in the country. That this explanation was credible and well founded in the circumstances prevailing in Somalia since 1991, was subsequently confirmed by the country of origin information submitted by the applicants’ solicitors by letter of 6th October, 2009, towards the end of an extensive exchange of correspondence with the Family Reunification section (“FRS”,) of the INIS in relation to the original refusal of the application and its subsequent reconfirmation. This documentation confirms that, prior to the collapse of the Somalia state in 1991, there had existed a centrally administered system for the appointment and registration of persons authorised to perform marriages under the aegis of the Ministry of Justice and Religious Affairs. This system was discontinued in 1991, but local Sharia courts “have, to a certain extent, retained some form of oversight and control over those authorised to perform marriages. Marriage certificates have also been issued by Sharia courts in Mogadishu and other towns after 1991”. It also points out, however, “no national or local registers containing information on marriages certified by these courts exist, and the Sharia courts have only invariably kept possession of copies of the issued certificates, hence, it is very difficult or impossible to verify such certificates. Civil marriages have never been performed in Somalia.””
21. The learned judge decided that the Minister’s decision was invalid and should be quashed, essentially on two grounds.
22. Firstly, he addressed the references in the several letters to the fact that the marriage was a religious one. It will be recalled that, in describing his marriage as “religious,” Mr. Hassan was merely ticking a box in the questionnaire he had to complete for ORAC. The learned judge rightly held that the statement contained in the letter of 4th June, 2009, to the effect that the marriage in Somalia was not recognised under Irish law because it was a religious one was mistaken. He described as “incomplete” the statement in the later letter of 31st July that it was “unclear whether the marriage is valid in this jurisdiction” even with the explanation that it might be recognisable as valid if “under the law of the State in which it took place, the formal requirements for a valid marriage have been complied with.” By “incomplete,” he meant that:
“even if the formal requirements of the lex loci 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 marriage may still be capable of recognition as valid in Irish law as a common law marriage.”
The last sentence raises an important question of law. I will return to the question of recognition of a “common law marriage” in some detail at a later point.
23. At this point, I would make two points. In this case, as in the case of Hamza, the Minister referred the applicant to the possibility of seeking a declaration pursuant to s. 29 of the Family Law Act 1995. Firstly, while the learned judge in this case also held that the Minister had not refused the application on this ground, again it seems to me that, in making this statement, the Minister was, at least partially, dispensing himself from the obligation to decide the question of whether the marriage had been proved. Secondly, and more importantly, it is clear that the Minister does not now defend his refusal to recognise the marriage on the ground that it was religious.
24. The first and principal reason for the decision of the learned judge to declare invalid the Minister’s decision to refuse Mr. Hassan’s application was the statement that the marriage was religious.
25. The second reason for the decision of the High Court to quash the decision was that it was based upon an incorrect interpretation of the test of a marital relationship applicable under s. 18(3)(b) of the Act of 1996. Cooke J. explained this ground as follows:
“Where a refugee is in a position to prove by alternative means that, since the date of the claimed marriage ceremony, a real marital relationship based on cohabitation and exclusivity in the relationship has subsisted between the two parties in question over a substantial period, the Minister may be entitled to consider that the requirement of s. 18(3) is satisfied.”
26. This statement should not be understood as requiring the Minister to recognise a “common-law marriage” in the modern colloquial sense of a cohabiting relationship where there has been no marriage ceremony. The learned judge did not suggest that marriage, for the purposes of the section should be held to include a relationship based on cohabitation and no more. His decision was based on the proposition of Barron J. in his judgment in Conlan v. Mohammad [1987] ILRM 172 that “a marriage contracted in a foreign jurisdiction without compliance with local requirements as regards form, may be recognised as valid as a common law marriage.” Cooke J. declined to comment on whether, on the facts, the necessary corroboration of the marriage consent in the Somali marriage ceremony existed in the circumstances of the present case. He did observe, nonetheless, that “the refusal to accept the documentary material purporting to originate from the Somali Embassy in Ethiopia on various dates in 2008 and 2009, would appear to be well founded, having regard to the country of origin information as to the absence of any sources of official information within Somalia at material times and the lack of explanation as to the basis upon which such documentation was issued by the Embassy in question.”
27. The learned judge also thought that the representative nature of the case called for comment on the correctness of approach to interpretation of s. 18(3)(b) which had been adopted by the Minister. He noted that the context of s. 18 is the provision of family reunification for refugees and thought that decisions in that context should not depend on arcane or uncertain rules. He correctly remarked on the existence of cases where formal proof of a marriage ceremony will be either “non-existent or impossible to obtain.” He noted, nonetheless that the section “does not require that the Minister be satisfied that the refugee and spouse be parties to a marriage which is recognisable as valid in Irish law, or that any particular documentary proof of the foreign ceremony be produced,” but “merely, that the refugee and spouse are married and that the marriage is subsisting at the date of the application.”
28. He made reference to the ‘UNHCR Resettlement Handbook (Geneva, November 2004)’; the ‘UNHCR Guidelines on Reunification of Refugee Families 1983’ and the ‘Conclusions of the UNHCR Executive Committee on Family Reunification of 21st October, 1981)’ He noted that the approach of Council Directive 2003/86/EC of 22nd September, 2003, on the right to family reunification (O.J.L. 251/12 of 3rd October, 2003) (which does not apply to Ireland) to the assessment of “the reality of the conjugal relationship” rather than upon the availability of formal verification of the legality of the marriage contract.
29. These are large and complex issues of law and fact. There may be good reason for adopting a broad and flexible approach to proof, where the very difficult personal circumstances of a refugee so requires, of the fact of a marriage ceremony. But the considerations which prompt such openness to proof of marriage do not suggest, at least not necessarily, that such proof can be dispensed with entirely in favour of ehat the judge called “the reality of the conjugal relationship.”
30. The Minister’s principal concern on the appeal related to the issue of “common-law marriage.” Counsel submitted that the test to be applied by the Minister in dealing with applications under s. 18 of the Refugee Act 1996 is that applied by Irish rules of conflicts of law. Marriage as defined in the Oxford English Dictionary (2nd ed. Vol. 9) as “the condition of being a husband or wife; the relation between married persons; spouse, wedlock.” When the word “marriage” is included in a statute and is not defined, it falls to be given a constitutional interpretation.
31. The Minister submits that the learned judge erred in law in taking into account, in considering his interpretation of section 18(3)(b), the fact that there might be circumstances where formal proof of marriage ceremony would be either non-existent or impossible to obtain. On the other hand, the Minister accepts that, as recognised in Dicey, Morris & Collin Conflicts of Law, 14th Ed. (London, 2006), (at p. 806), alternative evidence of the celebration of marriage may be received by the courts, or a presumption of marriage may be applied.
32. In my view, this appeal may be determined without addressing any question of whether it is appropriate to adopt a particularly broad interpretation of marriage. In particular, the facts of the present case do not require consideration of marriage based solely on “the reality of the conjugal relationship.” The primary test is that applied by Cooke J. in the case of Hamza v Minister for Justice Equality and Law Reform, which I have approved in my judgment delivered today on the appeal in that case. Irish law will recognise a marriage contracted in a foreign country which complies with the requirements of the laws of that country, the lex loci celebrationis, unless it conflicts with fundamental requirements relating to validity based on the domicile of the parties or public policy in our law, in particular capacity to marry. In Conlan v Mohamed, recognition of a common-law marriage was ultimately refused because the marriage was potentially polygamous.
33. However, as the Minister observes in his submissions, the applicants did not seek recognition of a “common law marriage,” certainly not in the colloquial sense. They did argue for an interpretation that would take account of the fact that it was difficult if not impossible for them to produce a certificate of their marriage in Somalia, a country in which all law and order and legal systems had effectively ceased to exist. At all times, they maintained that they were married at a religious ceremony conducted in Somalia on 5th December 1998. Their solicitors, on their behalf, maintained that it was “an Islamic religious ceremony and subsequently registered, in accordance with Somali law,” which was “legal in Somalia.”
34. In deciding this appeal, it is essential to emphasise that, as the learned judge very clearly held, it is a matter of the Minister and for him alone to decide whether the applicant under s. 18 is married to the person he wishes to have admitted to the State as his spouse. Whether the parties are married is a question of fact, but the Minister must apply the law correctly in deciding it. For the avoidance of any remaining doubt, it is not open to the Minister to decline to decide that question by suggesting that the applicant seek a declaration pursuant to s. 29 of the Family Law Act 1995. Cooke J., in his judgment in the Hamza case gave a number of reasons why that procedure would not, in any event, be particularly relevant or useful.
35. The essential problem in the present case is one of evidence. The respondents say that they were married in an Islamic ceremony in Somalia in 1998, but that they are unable to produce any evidence of that ceremony beyond their own assertion of the fact.
36. The learned High Court judge suggests that the marriage might be recognised in Irish law as a common-law marriage, in the sense in which that term has been applied at common law for a long time and which was considered by Barron J. in Conlon v Mohamed. In that case, the plaintiff wife, an Irish citizen, and the defendant husband, a citizen of South Africa, participated in an Islamic religious marriage in South Africa. The expert evidence was that such a marriage was not recognised as valid in South Africa on the ground that it was potentially polygamous. It is not clear whether it would have been valid in law in that jurisdiction apart from that fact and leaving aside its inter-racial character. The marriage between the parties would not have been valid in law at that time in South Africa, since the parties were of different races. The parties intended to be married in a later civil ceremony in Dublin, but that never took place. Barron J. traced the history of the notion of common-law marriage through a number of authorities and concluded, at page 179 of the report, that “the existence of a valid common law marriage must be determined by the nature of the ceremony and the intention of the parties in relation to that ceremony and not as to their belief as to its effect.” Accordingly, since the parties intended to be married, the validity of the marriage would not be affected by their belief that they could not be legally married in South Africa. In the final analysis, Barron J. held that the marriage could not be recognised in Irish law since it was potentially polygamous. But for that fact, however, it is clear that the marriage would have been capable of recognition as a valid common-law marriage.
37. For the reasons already given, it is not strictly necessary to rule in this appeal on the precise meaning and relevance, in the case of applications under s. 18 of the Refugee Act 1996, of the concept of common-law marriage. However, I recognise that the learned High Court judge considered the present case and the contemporaneous case of Hamza v Minister for Justice, Equality and Law Reform to have a representative character. It is true that the Minister is likely to be confronted with similar questions in other cases. It would be undesirable to pass over the entire matter without some attempt to address it, even though the following remarks cannot, in any sense, be regarded as definitive. I will confine myself essentially to referring to cases cited by Barron J. in his judgment in Conlan v Mohamed.
38. The common law relating to marriage, prior to any statutory regulation, was the common law of England, which also applied to Ireland. Prior to the Reformation, the common law was the same as the Canon Law of the Roman Catholic Church as it was prior to the Council of Trent (1545 to 1563). The essence of that common law is described in the several judgments delivered in the celebrated Irish case of Ussher v Ussher [1912] 2 I.R. 445. Kenny J. pronounced the judgment at first instance. The Court of Appeal consisted of Lord O’Brien L.C.J., Chief Barron Palles and Gibson L.J. As it was expressed by Kenny J., at page 458, the “Common Law and the Canon Law of England and Ireland were identical down to the reign of Henry VIII.” The common law recognised a valid and effective marriage as taking place by “sponsalia per verba de praesenti, whereby the spouses declared that they take one another as husband and wife at that very moment.” Lord O’Brien answered the question of what “was regarded as a Common-Law marriage” stating, at page 481, that: “Marriages that were made without formalities……., but by the mere consent of the parties, were at one time regarded by many as Common-Law marriages.”
39. The absence of formal rules led to what was described as the scandal of clandestine marriages. The sorts of irregularities considered in the cases were insufficiency of witnesses (Ussher v Ussher) and the absence of a properly qualified clergyman. The common law, being based on the pre-Trent Canon Law, did not require either witnesses or, though this was more debated, an officiating clergyman. The absence of a second witness (as required by the Decrees of the Council of Trent) was held, in Ussher v Ussher, not to affect the validity of the marriage. For different reasons, the fact that the officiating minister was not a clergyman of the established church after the Reformation, but a Roman Catholic priest was, in spite of objections that might be raised as to the validity of his orders, also held not to be a bar to validity. Lord Hardwicke’s Marriage Act of 1753 (26 Geo II, c. 33) required all marriages to be solemnised in the parish church, or a public chapel, of the Church of England by licence or after due publication of the banns. That Act invalidated any non-compliant marriage. But this Act did not apply to Ireland. The Council of Trent and the legislature at Westminster, respectively, at an interval of some two hundred years acted to counteract the contracting of clandestine marriages.
40. Rayden & Jackson, Divorce and Family Matters, 16th Ed., (London ,1991), page 159 says that clandestine marriages were common in England prior to 1753. In Ireland, the possibility of a common-law marriage survived at least to the extent that it provided the solution in Ussher v Ussher. Kenny J. summed up the situation as follows, at pages 465 to 466, of his judgment in that case as follows:
1. “The Common Law of England and Ireland relating to marriages were identical up to the Reformation, and marriage by a Minister in holy orders required no witness for its validity.
2. Since the Reformation the marriages of Roman Catholics by a Roman Catholic clergyman have continued to be deemed valid notwithstanding the change in the National Church, and are governed by the same Common Law that theretofore existed, and
3. Such marriages are in law unaffected by the Decree of the Council of Trent, and, therefore exempt from the necessity for witnesses.”
41. Thus, the common law continued to recognise marriages contracted per verba de praesenti and was prepared to overlook certain formal irregularities. These matters are now, however, regulated by statute and common-law marriage in the sense of Ussher v Ussher is no longer possible.
42. The notion of common-law marriage came to be extended over time to British overseas colonies or possessions or to places to which the common law had been applied.
43. The following passage from Rayden & Jackson, op. cit., page 158, provides a useful general outline of the circumstances of recognition of “common-law” marriages contracted overseas:
“Common law marriages cannot now take place in England; but they can be validly contracted in any place abroad where the English Common law prevails, and where either local law is inapplicable or cannot be complied with, or the local law does not invalidate such a marriage. In the case of members of an occupying army or of persons in a strictly analogous situation, as for example members of an organised body of escaped prisoners of war, if the parties show that they have not subjected themselves to the law of the country in question, the common law applies, for it is the law prima facie to be administered by the courts of this country. Further, since a British subject takes abroad to a colony only so much English law as is applicable to his situation, the provision of the common law that the marriage, to be valid, must be celebrated before an episcopally ordained clergyman of either the Church of England or the Church of Rome does not apply: Solemnisation before any minister in holy orders is sufficient. Indeed, probably the only essentials are that both have the capacity to marry and that they accept one another per verba de praesenti. It is not essential that one party is British.”
44. Lord Merriman P. traced the authorities on the subject at some length in Wolfenden v Wolfenden [1945] 2 All ER 539. Both from his own statements and from the citations in that judgment it seems implicit that the starting point had to be the extent to which the common law applied in the place of the marriage in question. Lord Merriman spoke of “the theory on which the incorporation of British law into a colony was based…” and cited a decision of a court in Bombay to the effect that though "colonists take the law of England with them to their new home, they only take so much of it as is applicable to their situation and condition.”
