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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

PART II - LEGAL AND POLICY RESPONSES TO POLYGAMY WORLDWIDE

Having studied the various ways in which women's lives might be affected by polygamy, we might consider how laws and policies worldwide have responded to plural marriage, to determine whether they adequately address the particular needs and interests of women. The second part of this report undertakes a review of the various approaches that have been developed by diverse jurisdictions in regard to polygamy. It discusses responses to plural marriages formed domestically as well as those formed in foreign jurisdictions. Ultimately, this analysis serves as a basis for determining whether foreign approaches to polygamy might inform Canadian legislative and policy making in this area.

At the outset, it should be noted that the following discussion does not purport to represent an exhaustive overview of how each jurisdiction in the world deals with polygamy. Rather, a variety of states were selected on the basis of their ability to illustrate the diversity of legislative and policy approaches to plural marriage that exist across the globe.

Legislative and policy approaches to polygamy are generally distinguished along two separate lines, namely, approaches that deal with plural marriages formed domestically, and approaches that deal with plural marriages formed abroad, in foreign jurisdictions.

Approaches to Polygamous Marriages Formed Domestically

Most countries recognize a set of legal norms that deal with plural marriages formed domestically. Three different responses to domestic polygamy can be identified:

• pursuant to a permissive approach, polygamy is permitted and recognized as a legal marital arrangement;
  
  
• a prohibitive approach, pursuant to which the state does not recognize polygamous marriages, and might also consider this practice to be criminal and meritorious of a penal sanction; or
  
  
• a combined customary law and civil law that allows individuals to choose the legal tradition under which they wish to marry and, if customary law is chosen, they may marry polygamously and the marriage will be recognized to the extent that polygamy is permitted under customary traditions.

Permissive Approach

Polygamy is permitted in many jurisdictions worldwide that are governed either partially or wholly by Islamic or Shari'a law. Pursuant to a traditional interpretation of Shari'a law, men may marry up to four wives simultaneously and can terminate each at will without justification or their wives' consent or presence (Mir-Hosseini 2003: 7). Polygamy is explicitly permitted
- though not required - in jurisdictions that adopt Shari'a norms as governing family relationships. However, most of the legislation enacted in these jurisdictions frames the right to marry polygamously within specific conditions necessary for such marriages to be recognized.For example, pursuant to Syria's Personal Status Law, men retain the right to marry up to four wives, and may divorce them through repudiation. However, judicial permission to marry polygamously must be obtained and a judge may refuse this if a husband is unable to establish lawful cause for taking an additional wife, or if he lacks the financial capacity to support all proposed wives (Afary 2004).

In Morocco, more exacting conditions to practising polygamy exist. While polygamy is permitted under the Code of Personal Status, a wife can, at the time of marriage, opt for a monogamous union and stipulate this as a requirement in her marriage contract. Breach of this commitment to monogamy allows a wife to seek divorce. In addition, a wife's awareness of, and consent to, her spouse's decision to take a subsequent wife is necessary. A subsequent wife must also know before her marriage whether a man is already married. Judicial authorization is necessary to practise polygamy and may be refused where there is a concern that the wives will be treated unequally (M'Salha 2001: 172-73; Dangor 2001: 116; Afary 2004; Rude-Antoine 1991: 96; Venkatraman 1995: 1978-79; Irvine 2003). It has, however, been reported that these requirements are not effective, since there are no enforcement procedures for them in the law. In an effort to address discrimination against women, the Moroccan prime minister presented a national plan in 1999 for reforming the Code of Personal Status that proposed the limitation of polygamy. This plan faced fierce opposition from conservative and Islamist groups, and the implementation of the Plan was put on hold (Human Rights Watch Morocco 2001). However, in February 2004, reforms to the law governing marriage and other areas of family law were enacted in Morocco. These reforms placed polygamy under the strict control of the judiciary. Nevertheless, several factors, such as the judiciary's lack of awareness about the reforms, opposition from religious legal authorities and lack of public awareness, continued to prevent Moroccan women from fully enjoying these newly acquired rights (Willman Bordat and Kouzzi 2004).

Libya's Marriage and Divorce Regulations Act renders polygamy subject to permission by a court, which requires proof of a husband's physical and financial ability to support plural families. The same condition exists within Iraq's Law of Personal Status. Iraqi courts may authorize polygamy only where the husband is financially able to support plural wives, and this serves a legitimate interest. Authorization must be refused if there is a fear of unequal treatment of co-wives (Dangor 2001: 116). Non-compliance with these requirements could entail a criminal penalty, and allows a wife to seek separation. However, a man may be exempt from these requirements if the prospective subsequent wife is a widow CEDAW Iraq 1998: 26).

Although polygamy is permitted under Algeria's Family Code, a man must provide a rationale for contracting a polygamous marriage, must be able to treat his wives equally and must give prior notice to his existing wife/wives. A wife may petition for divorce on the grounds of having sustained harm due to her husband's omission to obtain her consent to his subsequent marriage. Courts retain some discretion in interpreting and applying Algerian law in relation to plural marriage (Rude-Antoine 1991: 116).²¹

Under Jordan's Law of Personal Status, a man who takes more than one wife must treat them equitably and not compel them to live together without their consent (CEDAW Jordan 1999: 64-65; Welchman 2000: 185-86). Similar requirements exist under Yemen's Law of Personal Status, which allows men to marry up to four wives provided he can treat them fairly, show a “lawful benefit,” and provide for each of them. He must also inform any existing wife and the prospective wife about his intention to marry polygamously.  

Egypt's Personal Status Law allows a man to enter a polygamous marriage, but he must first obtain consent from his initial wife. She, in turn, may petition for divorce if her husband takes an additional wife and she sustains harm that makes continued cohabitation with him impossible (Dangor 2001: 116; Venkatraman 1995: 1984-90).

Although no longer governed purely by Islamic law, Indonesia continues to recognize plural marriages. The National Marriage Act was introduced in 1974 in an effort to render marriage subject to regulation by civil, rather than exclusively religious, law. A primary objective of this legislation was to limit polygamy. Pursuant to the law, a Muslim husband may take a second wife if he obtains consent and judicial approval, and only for certain reasons specified by law. (Cammack et al. 1996: 45; Hanifa 1983: 22-23; Soewondo 1977; CEDAW Indonesia 1997: 72-73). Courts have shown themselves willing to invalidate polygamous marriages that do not adhere to these statutory requirements.²²

In addition to nations such as those just described where family relations are largely governed by Shari'a law, several jurisdictions allow a plurality of religious norms to shape the regulation of marriage and divorce. In India, for example, family relations are not regulated by a single set of rules. Rather, the five major religious communities (Hindu, Muslim, Christian, Jewish and Parsi) have separate personal laws based on their respective religious laws.²³ With respect to the Muslim community, norms governing marriage are generally not legislated and instead, Shari'a law is applied. Muslim men thus may marry up to four wives (Shah 2003: 371). Because polygamy is unregulated within the Muslim community, men may take subsequent wives without prior wives' consent, and there is no inquiry as to whether they abide by the requirement under Islamic law that they treat their wives equally.²⁴

Under the Indian Hindu Marriage Act, 1955, which applies to Indians of the Hindu, Buddhist, Sikh or Jaina faiths, polygamous marriages are not recognized.²⁵ Polygamy is also considered as an offence under this statute,²⁶ and can serve as a basis for divorce by a wife (CEDAW India 1999: para. 372). Despite this, Indian courts have recognized the legal consequences of polygamy even among those governed by the Hindu Marriage Act, given that full enforcement of this law has been viewed as leading to injustice for women and children (Shah 2003: 371). Polygamy is not recognized for Christians or Parsis in India, who are governed by the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act respectively.²⁷

Hindu and Muslim laws are also simultaneously recognized in Bangladesh and Pakistan. Unlike India, however, Hindu personal law operates to allow polygamy for Hindus in these jurisdictions. (Shah 2003: 371; Roy 2004: 135-36, 138). Muslim men may also marry polygamously, but only on the fulfillment of certain statutory conditions (Shah 2003: 371). Men intending to contract subsequent marriages must, under the Muslim Family Law Ordinance, seek written permission from an arbitration council. They must also notify and obtain consent from their existing wives before taking a subsequent wife. Contravention of these requirements could trigger penal sanctions and provides sufficient grounds for a prior wife to dissolve the marriage (Dangor 2001: 116; Venkatraman 1995: 1990-91; Carroll 1985: 285).

In Sri Lanka, while polygamy is generally barred, an exception is made for Muslim men under the Muslim Marriage and Divorce Act. The same is true in the Philippines, where, although polygamy is criminally prohibited,²⁸ the Code of Muslim Personal Law allows a man of Islamic faith to have more than one wife if he can give them equal companionship and treatment. Existing wives are also entitled to notice of a husband's decision to take an additional wife, and if they do not consent to this, an arbitration council is constituted to determine whether the objections should be sustained.²⁹

Similarly, polygamous marriages are allowed under Singapore's Administration of Muslim Law Act, but only after an inquiry by the registrar of Muslim marriages has taken place. This inquiry must establish a justification for the subsequent marriage, as well as the husband's ability to support his wives and treat them equally.³⁰

Three African countries studied for this report create a default marriage regime that prospective spouses may opt not to follow. In both Cameroon and Burkina Faso, the default regime is monogamy, but spouses may opt for a polygamous marriage before they marry (CEDAW Burkina Faso 2000: para. 256; CEDAW Cameroon 1999: 89ff). If spouses enter a monogamous marriage but a husband subsequently takes an additional wife, the initial wife may apply for the annulment of her marriage. In Burkina Faso, a husband who has not opted out of monogamy might be imprisoned or fined for practising polygamy (CEDAW Burkina Faso 1998: 4-5, 25-26). Nevertheless, polygamy remains widespread. This may be because many women are unaware of their marital rights or because marriages are not always fully documented, and men may thus take several wives without prosecution (CEDAW Burkina Faso 2000: 281-282).

The default marital structure in Gabon is polygamy, but parties may elect monogamy. A spouse who marries monogamously but subsequently takes another spouse is deemed to commit an offence punishable by imprisonment. Nevertheless, men are entitled to convert their marriages from monogamous to polygamous and, although women are meant to consent to this, most will do so readily, as this is considered preferable to “abandonment” by their husbands (CEDAW Gabon 2003: 26-28; UN Information Services 2005). Although the government of Gabon has tried to limit polygamy, the practice of men taking multiple wives persists, predominantly in the name of tradition (UN Human Rights Committee 2000).

A final country of note is Bhutan. Polygamy is permitted in this jurisdiction, though not on the basis of any apparent religious normative order. Although polygamy and polyandry are both permissible under Bhutan's Marriage Act, 1980, polyandry is rarely practised. This law requires that a spouse's consent is obtained before engaging in a subsequent marriage (CEDAW Bhutan 2003: 2).

Prohibitive Approach
While polygamous marriages are permitted and recognized in several jurisdictions, many other states do not view polygamy as an acceptable form of marriage. Bigamy and/or polygamy might also be considered as criminal offences in many jurisdictions.³¹ Yet as discussed here, polygamy may still be practised even when prohibited by law.

Several states have adopted an approach that targets, and tries to limit polygamy at two separate levels: civil and criminal. As such, these states do not recognize polygamy as a form of civil marriage, and parties to such unions do not have legal spousal entitlements or obligations. At the same time, polygamy is targeted at the criminal level, through legislation that makes plural marriage an offence bearing the potential to trigger penal sanctions. This two-pronged approach is undertaken, for example, in the United Kingdom,³² Samoa,³³ Trinidad and Tobago,³⁴ Tunisia,³⁵ France,³⁶ Australia,³⁷ New Zealand,³⁸ Hong Kong³⁹ and China.⁴⁰ Polygamy is also considered an offence and subject to penal sanction in Madagascar⁴¹ and in Paraguay.⁴²

Polygamy is also prohibited in a number of other jurisdictions, and thus, plural marriages would not be recognized in these states. This is the case in all member states of the European Union (Gonzalez and Mac Bride 2000: 178), as well as Georgia,⁴³ Kazakhstan,⁴⁴ Thailand,⁴⁵ Viet Nam,⁴⁶ Armenia⁴⁷ and Turkey.⁴⁸

Several states explicitly recognize only monogamous marriages, thereby indicating that polygamous unions would not be recognized within these jurisdictions. For example, in Belarus, the Marriage and Family Code indicates that marriage is a voluntary union of man and woman (CEDAW Belarus 2002: 63). The singular form used in this provision indicates the exclusive recognition of monogamous marriages. In Belize, the law defines marriage as voluntary union of one man with one woman to the exclusion of all others (CEDAW Belize 1996: 44-45). Similarly, an individual in Cuba may enter a recognized marital or conjugal union only with one other partner (CEDAW Cuba 1999: 54). Polygamy is also implicitly prohibited in Uzbekistan where a prior, undissolved marriage is considered a bar to marriage (CEDAW Uzbekistan 2000: 81).

In many states that prohibit polygamy, this practice continues to be carried out quite publicly. For example, although polygamy is generally prohibited in Nepal, the law recognizes certain exceptions to this rule⁴⁹ and, as a result, this practice remains widespread (CEDAW Nepal 2003: 8, 38). And, while polygamy is prohibited in the Russian Federation, the practice has been found to persist in certain Islamic regions of the country.⁵⁰

Polygamy is also openly practised in the United States, despite the legal prohibition against plural marriage in all states. In the late 19th century, congressional legislation was passed to criminalize polygamy in the American territories (Forbes 2003: 1521-22; Chambers 1997: 63-64). Although this was challenged as an unjustified interference with the free exercise of religion, the law was ultimately upheld by the U.S. Supreme Court in a decision that continues to be applied in cases involving the criminal prosecution of polygamists.⁵¹ Polygamy is prohibited under the Constitution of Utah, and the state legislature recently enacted the Child Bigamy Amendment to its criminal law, increasing the severity of this offence when carried out with a minor (Clark 2004: 278, 281-82). Despite this, plural marriages continue to exist throughout Utah and other states (Ward 2004: 137-38; Chambers 1997: 70-71) and few individuals involved in these practices are prosecuted (Ward 2004: 139-40; Clark 2004: 280; Chambers 1997: 69ff).

Canada's situation is similar to that in the United States. Although the Criminal Code prohibits bigamy and polygamy, polygamous families and communities exist within the country. The most well-known among these is Bountiful, where polygamy is openly practised. Despite this, criminal prosecutions for polygamy or bigamy have never been brought against community members (Cohen 2003; Matas 2002b). Indeed, in Canada, prosecutions for practising bigamy or polygamy have been few and, where convictions have been rendered, the jurisprudence reveals a tendency toward relatively light penal sentences, on the basis that deterring polygamy is unnecessary, because it is so uncommon in Canada.⁵² Having said this, polygamy is still described as an affront to the values Canadians attribute to marriage and family life.⁵³ 

Canadian law is also quite clear that plural marriages are not recognized as valid in Canada.⁵⁴ Nevertheless, although illegal and invalid, these marriages might create rights and duties as between the spouses. This requires that the person claiming a right has acted in good faith and has not known about a spouse's prior, still existing marriage.⁵⁵

Combined Approach: Secular and Customary Law
Several African nations have adopted a multiplicity of legal systems to deal with marriage and family relationships. In many of these jurisdictions, prospective spouses are free to choose whether they wish to marry under the civil laws of the country, or under African customary law. If customary law is chosen, parties may enter a polygamous marriage if such a practice forms part of customary traditions. This pluralistic approach is adopted, for example, in Eritrea,⁵⁶ Nigeria,⁵⁷ Kenya (Hardee 2004),⁵⁸ Uganda (Wing 2001: 844),⁵⁹ Zambia, ⁶⁰ Namibia,⁶¹ Guinea⁶² and Zimbabwe (Wing 2001: 845-50)⁶³ where polygamous marriages are recognized for those married under African customary law. Moreover, certain jurisdictions (such as Eritrea, Nigeria and Uganda) recognize a man's right to marry polygamously under both customary and religious (i.e., Islamic) law.

In South Africa, customary marriages are recognized under the Recognition of Customary Marriages Act, 1998. This statute operates to exempt customary marriages from the general bar against polygamy. However, plural marriages formed under religious law (e.g., Hindu, Muslim) are not accepted (South African Law Reform Commission 2003: 5; Wing 2001: 851-52). ⁶⁴ Recently, however, the South African Law Reform Commission completed a report that proposed legislation allowing for the recognition of marriages formed under Islamic law, including polygamous marriages (South African Law Reform Commission 2003).⁶⁵ Under this bill, a husband would have to apply to a court for permission to marry polygamously, and the court would be required to assess whether he is willing and able to treat his wives equally. Prior wives would be entitled to receive notice of a husband's intention to take a subsequent wife, but their consent is not required. Failure to comply with these requirements would be a criminal offence subject to a potential conviction or a fine (Manjoo 2005).

There are difficulties, however, with recognizing polygamy under customary law. Because customary law is usually unwritten, there is wide variation as to how it is understood, interpreted and applied within a community. Customary marriages are also unregistered in many jurisdictions, rendering them difficult to prove. This might also frustrate the ability to establish whether a man is already married (Jessep 1993: 31; Hardee 2004: 733-37). Formalizing customary law so its content is more certain, and requiring the registration of customary marriages⁶⁶ have been recommended as methods for overcoming these challenges (Hardee 2004: 740-45).

In addition, because women married under customary law are not given the same spousal rights as those married under state law, they are at risk of economic instability and impoverishment. In recognition of this, the South African legislature has enacted statutes to extend the rights of women married under secular law to those married under customary law (Kaganas and Murray 1991: 122-23). Kaganas and Murray suggested that this approach to customary marriage is more appropriate than an outright prohibition of plural marriage that would extend to those espousing customary law. In particular, they feel that outlawing polygamy is a drastic step that is not likely to be effective in a society where family law is premised on cultural and religious norms. A law barring polygamy in such a setting would not offer full protection for women's equality interests.

A legal system can never prevent people from establishing family relations outside its ambit and women who are positioned in oppressive structures are often the least able to resist the demands of tradition. To say that a woman who has grown up in a patriarchal cultural setting and who has no obvious alternatives should defy the community and resist polygyny because this is required by law is unrealistic (Kaganas and Murray 1991: 133).

Approaches to Polygamous Marriages Formed in Foreign Jurisdictions

Many jurisdictions that do not recognize, and even criminally prohibit, domestic polygamy take a different approach to plural marriages formed in another state, according to that state's own rules. Questions about whether and to what extent polygamous marriages formed in foreign jurisdictions should be recognized arise in two principal legal contexts: matrimonial relief claims by spouses to a polygamous marriage, and immigration applications by polygamous family members. In thinking about the treatment of plural marriages formed abroad it is important to keep the interests of immigrant women in mind. In particular, polygamously married women who have relocated to jurisdictions where their unions are not recognized by the state have historically found themselves in very precarious social and economic circumstances. As discussed below, the justice of this has been scrutinized over time. While certain jurisdictions have taken measures to protect the interests of women in these situations, status as a polygamous wife still increases an immigrant woman's vulnerability.

Claims of Polygamously Married Spouses for Matrimonial Relief

The rights of women married polygamously have been considered quite extensively by courts, legislatures and academics in the United Kingdom.⁶⁷ Until the 20th century, polygamy was viewed by colonizers as a practice inimical to Christianity and civilization (Seuffert 2003; Martin 1994: 421; Shah 2003: 374-75; Esplugues 1984: 303-05). As such, courts traditionally refused to recognize polygamous marriages formed in foreign jurisdictions under English law.⁶⁸

From the 1930s onward, however, English courts adapted their position to meet the reality of a country hosting an influx of immigrants from many countries, often those that permitted polygamy (Shah 2003: 375; Esplugues 1984: 306). To temper the harsh effect of earlier judgments refusing recognition of plural marriages, courts found that “potentially” polygamous marriages⁶⁹ could “convert” to monogamy once a couple had immigrated. This allowed parties to apply for matrimonial relief in the United Kingdom (Shah 2003: 375; Esplugues 1984: 307; Marasinghe 1978: 398). Ultimately, legislation was passed to grant marital relief to polygamous spouses whose marriages were valid where celebrated.⁷⁰ The same statute prohibited polygamous marriages, however, for English domiciliaries, even if solemnized in a jurisdiction allowing plural marriage.⁷¹ The law was subsequently clarified to ensure that English domiciliaries who married in such jurisdictions and remained monogamous would be recognized as having a valid marriage.⁷²

As such, contemporary English courts will, in the absence of any violation of fundamental English public policy, recognize a polygamous marriage if it was validly created between foreign domiciliaries having full capacity, in compliance with the rules of the jurisdiction in which the marriage was celebrated (Martin 1994: 427, 443). English law recognizes such marriages as conferring the same rights and obligations between the spouses as monogamous marriages.⁷³ While this seems to benefit spouses since it offers explicit recognition of their union, it often promotes state interests as well in that, by recognizing these relationships, it might limit its responsibility for the spouses, and shift this obligation of support to the private, family sphere (Chapman 2001: 45-50).

Similar approaches to polygamous marriages formed abroad are taken in Australia and New Zealand. Australian law now recognizes polygamous marriages formed abroad, provided that the marriage complies with the law in the place of celebration.⁷⁴ Such marriages are not valid, though, if any of the parties is already in a marriage recognized in Australia.⁷⁵ Polygamous marriages are also recognized in New Zealand where the parties are domiciled in a place that allowed polygamy at the time the marriage was formed. However, a polygamous marriage is void if the parties were domiciled in New Zealand and, at the time of celebration, either party was already married.⁷⁶

France and Belgium take a somewhat different approach to marriages formed in foreign jurisdictions. As noted above, polygamy is prohibited under the Code Civil and the Code Pénal Français,⁷⁷ and considered as a violation of public order (Bourdelois 1993: 180ff). Given that French nationals are governed by French law in relation to personal status,⁷⁸ they may not enter polygamous marriages, either domestically or abroad.

The “public order” approach to polygamy has traditionally been attenuated where no spouse is a French national. Although a plural marriage is considered contrary to French public policy and thus not recognized even when validly formed abroad, courts have been willing to give effect to such marriages by recognizing spousal rights and obligations as between the parties (Esplugues 1984: 316-19; Nielsen 1996: 82-83). As discussed below, however, recent developments in French immigration policy abruptly halted the trend of national tolerance of foreign polygamous marriages.

The treatment of polygamy in Belgium is similar to the traditional French approach. Although polygamy is considered to run counter to public policy, Belgian courts have recognized the effects of polygamous marriages formed abroad. This has been viewed as protecting the legitimate interests of women in polygamy, an objective that is perceived to further, rather than hinder, public order (Foblets 1996: 141-44; Foblets 1994: 205; Esplugues 1984: 319). Foblets (1994: 203ff) noted, however, that in the administrative/immigration law context, Belgium has been less willing to recognize polygamy, thereby creating potentially difficult circumstances for women.

Similar to France and Belgium, Spain also responds to foreign polygamy by relying on the concept of public order. A polygamous marriage, even if formed in a jurisdiction where valid, cannot be registered in Spain, given that article 12.3 of the Spanish Civil Code prohibits recognition of a foreign law contrary to public order. Yet, while polygamous marriages themselves are not accepted in Spain, it remains possible to claim recognition of the effects of such unions as between the spouses (Motilla 2004: 598-99; Gonzalez and Mac Bride 2000: 179).

Canada's treatment of polygamous marriages formed abroad is closer to that adopted in the United Kingdom and Commonwealth nations discussed, than a strict “public order” approach. Originally, Canadian courts were reticent to recognize marriages formed in jurisdictions allowing polygamy⁷⁹ yet, as in the United Kingdom, this position has retreated over time.⁸⁰ This shift was justified primarily by the interest in assuring that second wives could validly claim matrimonial relief from polygamous husbands (Mendes da Costa 1966).

Currently, the effects of plural marriages formed outside of Canada are recognized in certain circumstances. In common law provinces, a person's marital status is governed by her or his “personal law,” which is the law of her or his domicile (Bailey 2004: 1010-11). For example, in Ontario a person married polygamously is considered a “spouse” and may claim matrimonial relief if the marriage was celebrated in a jurisdiction that recognizes it as valid.⁸¹ The same principle applies under Quebec civil law,⁸² subject to the requirement that such recognition would not be “manifestly inconsistent with public order in international relations.”⁸³

Immigration Applications by Members of Polygamous Families

A second context in which the law has grappled with how to deal with polygamous marriages validly formed under the law of foreign jurisdictions is that of immigration. In particular, questions arise as to whether a woman married to a polygamist, and/or her children, may immigrate with him to another country that does not recognize plural marriage.

The development of this issue in France has been fraught with controversy and challenge. Initially, France was willing to open itself to polygamous families whose marriages had been formed in places recognizing plural marriage. This was due to its postwar need for immigrant labour. By the 1990s, there were approximately 200,000 people living in polygamous families in France. Their living conditions were generally very poor, though, and immigrant women's advocacy groups in the country began to criticize the circumstances endured by women in polygamy. This movement coincided with a rise in French anti-immigration sentiment that targeted polygamy specifically as a national social and economic ill (Starr and Brilmayer 2003: 245-46; Bissuel 2002).

New immigration legislation (the Loi Pasqua) was thus passed in 1993, substantially altering France's policies vis-à-vis polygamy. It stated that just one spouse of each new immigrant could receive a spousal visa and working papers, and be eligible for family allowance; other spouses and their children were excluded. These changes applied both prospectively and retroactively, to families who had already immigrated. Thus, polygamous men and their wives were required to divorce and live separately, failing which they risked losing their French working and residence papers and family allowance. Family members also faced possible deportation. Although men with children born in France could not be deported, they stood to lose their working papers and thus risked severe impoverishment (Bissuel 2002; Starr and Brilmayer 2003: 247ff).

Reports indicate that immigrant women in France have suffered immensely as a result of the Loi Pasqua. For many, divorce was not an option both on principle, and because it would cause major economic and social upheaval for them and their children. Living separately also was often impossible, since most families could not afford separate houses for each wife and her children. Many women thus ended up homeless or living as squatters in abandoned buildings. Others have been deported (Starr and Brilmayer 2003: 248).

Under pressure from immigrants' rights groups, the French government took steps to temper the effects of the Loi Pasqua, for example, by giving spouses one-year visas to “de-cohabitate,” by reissuing work visas to parents of French children who could not be deported, and by helping displaced wives gain access to emergency shelters (Starr and Brilmayer 2003: 249-50).

Spain's approach to polygamy in its immigration context has not been altogether different from France's recent position. Legislation passed in 2000 prohibits foreign residents from bringing more than one spouse to live in Spain, even if polygamy is permitted in the person's country of domicile. A resident's chosen spouse and her children can obtain residence permits only if the resident alone exercises parental custody. This policy is paradoxical, in that it rejects polygamy on the basis of gender equality, yet allows males to choose among their wives and encourages women to abandon custody of their children (Motilla 2004: 596-97; Gonzalez and Mac Bride 2000: 179).

In the United Kingdom, the traditionally liberal approach to immigration by plural wives of polygamists was considerably restricted with the introduction of the Immigration Act, 1988. (Shah 2003: 383ff; Chapman 2001: 50-51). This legislation imposed an effective ban on the admission of a wife where another wife or widow of the same man had already been admitted to the country (Shah 2003: 391).

Although immigration restrictions limiting entry of polygamous spouses have been challenged as a human rights violation, the European Commission found that a state may justifiably limit the entry of polygamous families to preserve “the Christian based monogamous culture” dominant in the United Kingdom. As such, the immigration restrictions were found to be justifiable under the European Convention on Human Rights.⁸⁴ Similar challenges have been brought against polygamy restrictions within immigration policies in the Netherlands. These challenges were also rejected on the basis of public order and the state's justifiable interest in forming an immigration policy that best promoted its economic interests. ⁸⁵

Immigration authorities in Canada have allowed entry to children born to polygamous men who subsequently relocated to Canada.⁸⁶ Applications made by spouses, however, are customarily rejected on the basis of the non-recognition of polygamy under Canadian law.⁸⁷ This is now specified within Canada's Immigration and Refugee Protection Regulations, which curb the ability to sponsor foreign nationals when sponsors and/or the prospective immigrants are married polygamously.⁸⁸

Conclusions: Legislative and Policy Approaches to Polygamy Worldwide

The foregoing discussion reveals a diversity of legislative and policy responses to polygamy adopted in various jurisdictions throughout the world. Most countries whose laws are premised on secular, civil law do not recognize polygamous marriages formed domestically. Domestic polygamy may, however, be accepted in jurisdictions whose laws are founded on religious norms, or that allow persons to marry under religious or customary law. In regard to polygamous unions formed abroad, it is seen that, as a general rule, states have been willing to give effect to polygamous marriages formed by persons domiciled outside of the country, and according to the laws of the place where the marriage was celebrated. More conservative approaches, however, have been adopted in the context of dealing with immigration by polygamous families.

In view of this, the question that now arises is whether any of these approaches effectively responds to the social, economic and health realities that women in polygamy might experience,as described in the first section of this report. In addition, it remains relevant to consider whether and to what extent these approaches may be appropriate in the Canadian context. These questions form the focus of the final part of this discussion.