Cultural differences and access to citizenship: polygamous marriages
Globalisation implies that the interaction between different legal systems will continue to increase. We previously touched on this in the context of Private International Law/Conflicts of Law, the field of law dealing with cases that have a cross-border element and are therefore linked to several jurisdictions, when explaining that secular and non-secular States take a different approach to the possible application of foreign law by domestic courts. In that connection, courts will also be confronted with the question how to reconcile migrants’ domestic cultural norms with those of the receiving country. This can be illustrated with two interesting judgments dealing with nationality and polygamy – the practice of being married with more than one spouse – which were handed down last year by Dutch and Spanish courts.
The Dutch case concerned a man of Dutch-Moroccan nationality who had entered into a polygamous marriage at a time when this was still allowed under Moroccan law. A child was subsequently born from the second marriage with a Moroccan woman and the man was listed as the father on the birth certificate. The Dutch embassy, however, refused to issue a Dutch passport for the child because the child was born from a polygamous marriage. When the father challenged this decision, the Dutch Supreme Court ruled that the recognition of a foreign polygamous marriage should be refused for violating the ordre public (see for another example of the ordre public principle here, dealing with the relationship between citizenship and same-sex parents).
As the father-child family relationship was not recognised as a result of the non-recognition of the marriage on public policy grounds, the child did not (automatically) acquire Dutch nationality. Given that the first marriage had meanwhile been cancelled, however, the Court held that the second marriage could be recognised from the moment the first marriage had ended. From that moment on, the man could also be recognised as the father of the child. In the case at hand, the child did not acquire Dutch nationality automatically as a result of the marriage between the parents, but could acquire citizenship by parental recognition.
The situation in Spain was different. There a Spanish court ruled that a man from the Republic of Guinea was not eligible for Spanish nationality because he was legally married to several women in his country of origin. Since this violated a fundamental principle of Spanish marital law, he lacked ‘a sufficient degree of integration into Spanish society’ – a condition for naturalisation under Spanish law.
Author: Dr. Olivier Vonk