The positive role of public policy in private international law and the recognition of foreign Muslim marriages

This article deals with the possible recognition in South Africa of foreign Muslim marriages that are not valid in terms of the law of the country in which they were concluded. It is argued that such recognition is possible through the positive application of the doctrine of public policy. The role of public policy in private international law is usually described as a negative one (the exclusion of foreign law), but it is submitted that public policy may also play a positive role (the application of a legal system other than the usually applicable one) and some authority and examples are found in the common-law conflict of laws, Islamic jurisdictions and Israeli law. The relevance of the difference between internal and external public policy is indicated and the issue of whether the infringement by the foreign law of a right in the South African Bill of Rights automatically constitutes a violation of the forum's external public policy is discussed with reference to recent case law. South African decisions dealing with the recognition of Muslim marriages for certain purposes in domestic law on the basis of constitutional values indicate that the doctrine of public policy in private international law may readily be employed to recognise foreign Muslim marriages irrespective of their invalidity in terms of the prima facie applicable legal system. If the Muslim Marriage Bill of 2010 were to enter into force, the courts would be able to rely directly on a provision dealing with the recognition of foreign Muslim marriages to reach the same result. Certain shortcomings in the current draft are highlighted and an alternative formulation is proposed.