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Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports

How Have Policy Approaches to Polygamy Responded to Women's Experiences and Rights? An International, Comparative Analysis

INTRODUCTION

This report seeks to propose legislative and policy recommendations for dealing with the various social controversies and challenges that arise in connection with polygamy. More specifically, it sets out recommendations aimed at ensuring that Canadian responses to this issue are driven by commitments to gender equality, and to preserving the rights of women and their children. Thus, while polygamy raises a host of questions related to issues like religious freedom, the state's role in regulating “private” family relationships, and the recognition of polygamous marriages formed in foreign jurisdictions pursuant to private international law principles, this report considers these questions primarily from the perspective of women's rights and gender equality.

Currently, Canada's Criminal Code prohibits the practices of “bigamy” (s. 290(1)) and “polygamy” (s. 293(1)). The former offence involves participating in the ceremony of marriage while already married, or with someone who is known to be married. The offence of polygamy, however, does not necessarily focus on the act of “marriage” per se, but rather on the status of having more than one spouse, or being in a conjugal union with more than one person, simultaneously (see Chapman 2001: 11; Forbes 2003: 1518; Bourdelois 1993: 3). Polygamy thus includes the practice of plural marriage, as well as the practice of entering into plural marriage-like relationships simultaneously.

Polygamy, given that it is a broader concept that can include bigamy, tends to be the focus of the multidisciplinary literature on this subject. It should be noted that while both men and women might practise polygamy,¹ it is predominantly characterized - in all global communities where polygamy exists - by men having multiple wives, rather than women having multiple husbands.²

The particular structure and composition of the typical polygamous marriage, namely, the existence of multiple women “sharing” one male spouse, generates pressing questions associated with gender relationships. More specifically, we might ask whether family structures that allow men to have multiple wives, but not the reverse, can ever exist in harmony with the principle of gender equality. We might also question whether women would ever freely and actively “choose” to be part of such a family structure, and if so, what forces would motivate such a choice. Finally, we might be concerned about the nature of the relationships between the wives required to “share” a husband, and the effect of those relationships on women's well-being. In this connection, the effects on children raised in households and communities characterized by polygamy are also of interest.

This report addresses these questions by examining references that document the experiences of women who live, or have lived, in polygamous cultures and societies. As a second objective, this report examines policy approaches to polygamy in various jurisdictions to determine whether they effectively respond to the circumstances of women within plural marriages.

As such, Part I of this paper examines the social, economic and health impacts of polygamy on women. Based on empirical and doctrinal studies, as well as some anecdotal accounts, this part seeks to illuminate what life is like for women in polygamous relationships. It concludes that the global community of women in polygamy is quite heterogeneous and it is, therefore, impossible to draw a single, unqualified conclusion as to whether polygamy harms women. Proper responses to polygamy must be sensitive to the diversity of experiences women in polygamy might encounter, which are largely shaped by social and cultural forces.

Part II of this paper undertakes an examination of legal and policy approaches to polygamy in various jurisdictions worldwide. It considers the treatment of polygamy in nations where this practice is recognized as a valid form of marriage, as well as the varying approaches taken by countries that criminally prohibit and/or refuse to recognize polygamous unions. This discussion permits an analysis of the extent to which existing legal and policy approaches to polygamy adequately address the realities and interests of women within plural marriages.

Informed by the discussion in the first two sections of this report, the third and final part presents an argument as to the most appropriate principles that should be adopted for developing an effective and equitable response to polygamy in Canada. It sets forth a series of principles that should guide policy and legislative development, and ends with a series of more specific recommendations in this regard.