The recent ruling by the Irish Supreme Court on a polygamous marriage means that exclusivity is no longer considered an essential element in marriage. Marriage does not have to be exclusive under the new legal dispensation, it does not have to be the conjugal union of a man and a woman, it cannot be legally permanent and indissoluble, and it need not even be a sexual union, at any stage of the marriage. Little is therefore left of how we once understood marriage. Certainly, the Christian idea of marriage, mirrored to a large extent in most cultures, is dead and buried as a legal concept.
At stake in ‘H.A.H – v – S.A.A & ors’ was whether the polygamous marriages of a man entered into Lebanon could be recognised here. The Supreme Court ruled that the first marriage was valid but not the second marriage. However, in accepting the first marriage of the Lebanese man the court has also, perhaps inadvertently, treated exclusivity as a non-essential element of marriage. His first marriage was not intended to be to the exclusion of all others. He did not intend to be monogamous. His commitment wasn’t complete and exclusive as he was open to a possible second marriage.
Traditionally, in common law, the definition of marriage was based on the dictum of Sir James Wilde (later Lord Penzance) in the polygamy case Hyde v Hyde and Woodmansee (1866) “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
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