Common law marriage, religious marriage, recent judgment

Grolschevik

What does the term "common law marriage" refer to in this context (from the High Court judgment in Hassan & Other v Minister for Justice, Equality & Law Reform, 25/11/2010):

"17. Because the plaintiff in that case was domiciled in Ireland, she lacked the capacity to contract a valid polygamous marriage. It was for that reason that the religious ceremony in South Africa was incapable of being recognised as a valid common law marriage in Ireland. It would seem that, had it not been for the potentially polygamous nature of the Islamic marriage, a monogamous religious marriage would be recognised as valid in Irish law as a common law marriage, notwithstanding non-compliance with formal requirements of the civil law in the lex loci. It appears clear to the Court that had the marriage in question taken the form of a non-Islamic religious service according to a rite requiring monogamy, it would have been valid as a common law marriage in Ireland although prohibited as an inter-race union in South Africa at that time."

dermot_sheehan

Common Law Marriage doesn't exist in ireland due to certain legislative requirements going all the way from the Civil Registration Act 2004 to the Marriages Acts of the 17th century which abolished common law marriage and required that a marriage be contracted before an ordained priest or by special licence.


At common law the lex loci, that is the formalities of the place where the marriage took place govern whether it is recognised in foreign countries.

The marriage in south africa would therefore be governed by the formalities of south african law.

The prohibition on inter racial marriage in south african law would not however be recognised as a matter of public policy in ireland.

Therefore the marriage in Conlon v. Muhammed would have been recognised in Ireland at common law, fulfilling all the common law requirements (the statutory requirement that it be by licence or before an ordained priest not applying), except for the requirment that it be a union for life to the exclusion for all others (hyde v. hyde).

Since islamic marriages are potentially polygamous, they as an institution permit more than one spouse, they are not recognised in ireland.

In britains they have changed this by statute with the foreign marraiges validity act which recognises potentially polygamous foreign ceremonies provided no actual polygamy takes place.