Post
by Brigid from Ireland » Mon Mar 10, 2014 2:26 pm
Hi De_vip,
Ireland cannot confirm that they will permit you to enter until they see your passport, the passport of your wife and the marriage certificate. Therefore you can get no answer from Ireland until your passport is returned. But Britain must return your passport to allow you to leave Britain, they can choose to give it to you only as you leave the country (literally as you board the ferry for Ireland) but they must give the passport to allow you to go to the country of your choice.
Hi sony_44,
The marriage must be valid in the country where it is performed. A marriage by phone in a country where such a marriage is legal or a marriage using a legal document known as 'marriage by proxy' might work. I do not think that it will be easy for you to get permission to marry in UK, but if you know of any place that will marry you by phone/internet connection then the marriage is being performed in a country where it is legal, even though you are in UK. The question of whether or not such a marriage would be recoginsed in the UK or other European countries is a very complex legal issue, and needs advice from a specialist solicitor.
Some countries have a long tradition of allowing a marriage when one person is present and the other is not available but has given his/her consent. These marriages are legal in many countries, as they are legal in the country where they took place. They were quite popular at one time with UK soldiers and with the aristocracy.
Edited to add that it is actually Ireland that would need to recognise the marriage, assuming you wish to travel with your British spouse to Ireland so that your spouse may exercise migrant worker rights. In this case you may wish to read the following judgements. In fact if you are travelling to Ireland on this basis I would print these out and give them to the immigration officer if and only if questions are raised about the validity of your marriage.
Hamza & Another v. MJELR [2010] 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.
Hamza & Another v. MJELR [2010] 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.
Hassan & Another v. MJELR [2010] 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.
Aslam v MJE [2011] 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. 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. 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 Irish 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 Irish Constitution protects the fundamentals of marriage and it insists that the State respects the essence of that relationship. 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 [2011] 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 A and Mr U 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. U and, perhaps, even Ms. A. 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.
So it is possible that from an Irish viewpoint a marriage performed in Pakistan, in compliance with Islamic and Pakistani law, is accepted for migration to Ireland, even if one or both spouses was not in Pakistan when the marriage took place. If you do this please let us know if you succeed.
BL
