The Supreme Court should use public policy to refuse recognition of a foreign marriage only as far as necessary to protect fundamental values of the Irish legal order, Clarke J. said in a concurring judgment delivered on 15 June 2017.
Clarke J. said he fully agreed with O’Malley J.’s judgment and proposed order. He wrote separately to make observations about the public policy exception in private international law and the treatment of consequences arising from a foreign marriage that Ireland does not recognise.
He described three broad categories: measures valid under the law of the jurisdiction selected by Irish private international law; measures so contrary to the Irish legal order that public policy requires non-recognition; and measures that would be valid under Irish law anyway. He said the appeal concerned the boundary between the latter two categories.
Clarke J. said the value of having marriages treated consistently across jurisdictions was significant, but not absolute. The court should identify the fundamental values public policy protects and go no further than necessary to protect them. He agreed with O’Malley J.’s account of the values inherent in marriage in modern Ireland, including marriage as a coming together of equals. Those values may change over time, he said.
He agreed that protecting those values did not require refusing recognition to a potentially polygamous marriage, or withdrawing recognition from a first marriage because a second, polygamous marriage was contracted while it subsisted. He also cautioned that differences between foreign and Irish law do not automatically make a marriage fundamentally at odds with Irish norms. The question, he said, is whether the difference is sufficiently significant to justify non-recognition. Some consequences, such as maintenance and succession rules, may change when a couple moves permanently to Ireland; the number of people to whom someone is married does not change in that way.
The judgment did not decide whether Ireland would recognise a marriage involving a person of very young age. Clarke J. said public policy might require non-recognition in such a case, but that the issue was unnecessary to determine in this appeal.
Clarke J. said Irish law might still give limited, practical recognition to the fact that a marriage subsists under another jurisdiction’s law, for purposes such as inheritance, pensions or maintenance. He said legislation by the Oireachtas would provide greater certainty about any such rights. In its absence, courts would have to decide questions case by case. His conclusion was that he agreed with O’Malley J.’s judgment and proposed resolution of the appeal.