The recent ruling of the Supreme Court (Third Chamber) of 16 January 2018 once again brings to the forefront the question of the admissibility of bigamy in Spain. In the case in question, the widow's pension provided for in the State pensioners' pension scheme is granted to two simultaneous widows of Mohameda bigamous Moroccan recipient. The Court concludes by establishing a Solomonic criterion of equal sharing for the calculation of the amount of widow's/widower's pension between the two. To this end, it relies on the Social Security Agreement between Spain and Morocco of 8 November 1979, according to which the status of beneficiary wife may be extended or extended to the wife or wives who, according to the personal law of the deceased, were considered as such. This ruling, which upholds that handed down by the Madrid High Court of Justice, is not an isolated pronouncement since, admittedly with hesitation, the situation of bigamy was admitted in specific cases by lower courts, always in the case of granting widow's pensions to personnel assigned to the Ministry of Defence, especially in the former Province of the Spanish Sahara. It thus departs from the interpretation of the same Chamber, among others, in the judgments of 19 June 2008 and previously of 14 July 2004 in relation to the determination of the degree of integration into Spanish society of a person applying for Spanish nationality under art. 22.4 of the Civil Code. The Court considered then that polygamy is not simply contrary to Spanish law, but rather that it is contrary to Spanish public policy to impose an insurmountable limit on the effectiveness of foreign law (art. 12.3 Civil Code) concluding that a polygamist cannot acquire Spanish nationality. At an intermediate stage are the State Cooperation Agreements with the Islamic Confession of Spain (Law 26/1992, of 10 November), extended to the confessions with notorious roots by the sixth Final Provision of Law 15/2015, of 2 July. These leave the formation of a marriage freedom dossier for marriages contracted in Spain under the Islamic rite in a nebulous situation.

There are currently some fifty states where polygamy is an accepted or legally recognised form of family unity. Most are African and Islamic, although Judaism allows polygamy in its communities in Yemen or Morocco. Israel criminalised bigamy in 1959. Specifically in Morocco, the Family Code - Mudawana- allows a man up to four wives under certain conditions.

Polygamy is unquestionably incompatible with Spanish and European public order, insofar as - as the separate opinions to the judgement under discussion establish - it presupposes inequality between women and men, as well as the submission of women to men. For this reason, the act of contracting a marriage while another previous marriage subsists is a crime.

What would have happened if the causer Mohamed Can the Notary Public apply the personal law of the deceased contrary to Articles 14 and 39 of the Spanish Constitution, and can the Registrar register the resulting shares? The DGRN has clearly ruled against this possibility in its decision of 20 July 2016, which denies that it is possible, in the specific case raised there, to attribute a double share to the man over the woman in relation to the personal law of the deceased in his succession. mortis causa on real estate in Spain, as a person subject to Sharia or Islamic law.

The application of personal laws derived from foreign law must be assessed in accordance with the parameters of the public policy of the forum. This concept, which is multifaceted and evolving, represents the set of fundamental values on which a legal system is based, which, insofar as they are concurrent, must be aligned with European law. The difficulty of this alignment is evident in matters such as same-sex marriage or surrogate parenthood or even, in Malta, in civil divorce. Let us remember, for example, that in Spain same-sex marriage has been legal for years and that, since Law 16/2015, these couples can even adopt, so that any discrimination in this regard must be considered contrary to the public order of the forum.

With this difficulty in the application of non-European laws, i.e. not based on the principle of mutual trust, the Authority receiving a succession will have to analyse its impact on public policy on the basis of the values accepted as common principles in the Charter of Fundamental Rights of the European Union, in particular Article 21, which prohibits any form of discrimination. (As recalled, among others, by the CJEU Court of Justice on 28 April 2009, Meletis Apostolides v. David Charles Orams and Linda Elisabeth OramsCase C-420/07). In the specific area of succession mortis causaEuropean law, as represented by Regulation (EU) No 650/2012, in its Article 39 and recital 58, provides that ".The application of a provision of the law of any State designated by this Regulation may be refused only if such application is manifestly incompatible with the public policy of the Member State of the forum". which prevents the recognition (Art. 40) and acceptance (Art. 59) of decisions or public documents from a third country, since, as is well known, the applicable law of a universal nature can lead to any country. For a better assessment of public policy in non-contentious inheritances, the Regulation has the singularity of extending the concept of forum and with it the possible assessment of constitutional compatibility or not, to non-judicial authorities, such as notaries and, in the case of relict property, registrars, as was made clear in the aforementioned decision.

In my opinion, this judgment, which will open the door to hundreds of other cases, is a specific case that must be strictly interpreted. The 1979 agreement with Morocco is contextualised in historical circumstances that cannot be extrapolated. But despite this, the ruling opens up a difficult debate on the application of the public order of the forum in Spain, insofar as the inheritance authority should not hesitate to apply it in a situation of polygamy - or of inequality on the grounds of sex based, for example, on Islamic law. But with the uncomfortable reservation of the specific administrative rights that it is not up to it to assess or establish.