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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 III - CONCLUSIONS AND RECOMMENDATIONS

As discussed throughout Part I, women's experiences in polygamy are extremely varied. Whether a woman, and often her children, thrives or suffers within a plural marriage often depend, on the socio-cultural context in which her marriage is situated, as well as the relationships that exist within her family unit. This being the case, it would be contrived and inappropriate to imagine that a single policy response to polygamy would be effective in all plural marriage societies and families. Solving the dilemmas that women may experience in this family structure requires respect for diversity among women, and recognition of their equality to one another and to men. It is therefore recommended here that the most appropriate response to polygamy is one that is multi-tiered, and adopts strategies at the legal and social levels, in both the private and public domains.

Part II discussed a variety of law and policy approaches that have been adopted the world over for addressing polygamy. It is submitted that none of these approaches, including the Canadian approach, can satisfactorily address the needs, interests and rights of women in polygamy. In particular, global responses appear to be premised on the presumption that polygamy is either universally harmful or benign to women, without any real analytical justification. However, it is submitted that legal and policy approaches must target factors detrimental to women (such as abuse, poverty, coercion and nefarious health consequences), rather than just the practice of polygamy on its own.

Nevertheless, despite the shortcomings of international policy efforts in regard to polygamy, the analysis remains instructive. In particular, this investigation illuminates strategies that might be effective in the Canadian context, as well as those that have been detrimental to women and thus should be avoided in our own policy development.

Reflections on Domestic Polygamous Practices

A number of countries recognize polygamous marriages on the basis of religious or customary law. In each case, a man's right to take additional wives is not absolute, but subject to specific requirements like obtaining judicial approval, ensuring equal treatment of all wives or obtaining consent from a spouse. The difficulty, however, is that while these conditions aim to protect women, the literature is replete with discussion indicating that women suffer socially, economically and even physically in these scenarios.

Moreover, it is difficult to assert that women in communities espousing polygamy as a core value always have a veritable “choice” regarding their marital structure. This is the case where the state allows polygamous marriages under its general rules (as in countries where family relationships are governed by Islamic law), and where the state recognizes polygamous marriages for those married under a legal system that allows this practice (as in South Africa and India). Although in the latter situation it is arguable that women have a choice not to marry within such a legal system, exercising such choice could require women to abandon their cultures and communities, an option that would clearly be unappealing and daunting for any woman in the world. As noted by Kaganas and Murray above, women in the most oppressive cultural circumstances are frequently “the least able to resist the demands of tradition” (Kaganas and Murray 1991: 133).

For these reasons, steps must be taken to ensure that our formal definition of marriage remains consonant with equality principles. Canada is urged not to consider moving to an approach that allows marriage and family relationships to be governed exclusively by religious or cultural norms. Before this is even contemplated, much more work needs to be done to examine the effects of such a move for women and children. In particular, thought must be given to the consequences of making marriage and family relationships a private matter governed by religious or cultural authorities. Such a development, while perhaps laudable for its recognition of legal pluralism and religious freedom, presents a risk for women and their children. Even if the state continues to oversee this area, its ability to ensure and enforce gender equality will be extremely limited if the regulation of marriage and the family is abdicated to religious or cultural leaders.

Law and policy approaches that prohibit polygamy might, at first blush, appear to further women's equality interests since monogamy alleviates the difficulties associated with marital structures premised on men alone having the ability to take plural spouses. Yet more thought must be given to the criminalization of polygamy and bigamy. The offence of bigamy relates to the act of carrying out a subsequent marriage. It thus suggests that a special premium is placed on monogamous marriage as an institution. The protection of this institution was viewed as a basis for retaining the offence of bigamy in the Criminal Code according to the Law Reform Commission two decades ago (Law Reform Commission of Canada 1985). Here again, however, further inquiry is required. Specifically, we must question whether marriage deserves such special treatment given that many in Canadian society opt not to marry. Moreover, spousal rights and obligations often extend to non-marital conjugal relationships, indicating the law's recognition of a growing social interest in spouse-like relationships aside from marriage. We thus might ask whether it makes sense to go as far as criminally prohibiting an act on the basis that it bears the potential to distort the institution of traditional marriage.

Moreover, the consequence of making an act an offence is that, if prosecuted and convicted, the person charged will be subject to a sanction, typically a fine or imprisonment. These two outcomes bear potentially dreadful consequences for women and children living in polygamous families. In plural marriage cultures, men are typically the primary income earners while women mainly work domestically. Therefore, when a polygamous husband is heavily fined or imprisoned, his wives and children clearly stand to suffer important economic hardship. Moreover, the offences of polygamy and bigamy are worded such that both husbands and wives can be convicted. Thus, if both parents are subject to penal sanction, the brunt of this clearly will be felt by children, who will face separation from them and possible placement in state care.⁸⁹

Reflections on Foreign Polygamous Practices

Plural marriages formed in jurisdictions where polygamy is permitted require a different approach. Persons who enter polygamous marriages in these circumstances usually bear legitimate expectations of forming valid spousal relationships that create enforceable rights and obligations. Thus, as discussed, most jurisdictions - even those that prohibit domestic polygamy - are willing to protect the rights of parties in such marriages.

Difficulties in this area arise, however, in circumstances where a man and woman marry in Canada, but the husband then leaves the country and marries a second wife (without divorcing the first) in a jurisdiction that allows plural marriage. In this scenario, both wives have legitimate expectations in regard to their marriage and its effects, but these expectations conflict. With respect to the first wife, if the matrimonial effects of the husband's second marriage are recognized, this will diminish “the pie” of resources that he has to support his first family. With respect to the second wife, as seen in the discussion regarding polygamy in the immigration context, she will have difficulty obtaining entry into Canada on the basis of her polygamous marriage. If she obtains entry, she may claim matrimonial relief, but her share of her “husband's” assets will also be limited by his obligations to his first family.

This is a real conundrum that must be grappled with in the context of formulating policies in both the private and public law contexts. Thought must be given as to how to deter marriages by Canadian domiciliaries in foreign jurisdictions while already married in Canada. For the reasons discussed above, criminal law is probably not the most appropriate response. However, we might consider a more principled policy approach that examines and effectively responds to the interests of women and children who find themselves in situations like the one just described.

Recommendations for Future Policy Development in Canada Regarding Polygamy

Guiding Principles

Based on the reflections set out above, a series of recommendations is presented here for future action in developing policies for responding to polygamy. These recommendations have been formulated, and must be implemented, in the spirit of the following key principles.

• Policy responses to polygamy must be inspired by the objective of achieving equality and full respect for all persons. This is the primary objective that must guide all decisions. It must remain paramount and take precedence even over other important values, such as respect for religious freedom and legal pluralism.
  
  In this connection, it is noted that safeguarding women's rights will not necessarily eliminate all social injustices associated with polygamous marriages. As considered in this report, polygamous communities are commonly characterized not only by inequalities between men and women, but also by inequalities among men, particularly in regard to economic and social status. As such, policy measures must of course consider the rights of women and children as pre-eminent, given that their interests are commonly undermined by polygamous family life. At the same time, policy initiatives must not lose sight of the factors that impair justice for all individuals, and must design measures aimed at eliminating them.
  
  
• Proper responses to polygamy require a keen awareness of cultural relativism. Although measures must be sensitive to the different religious and cultural viewpoints that exist in regard to this issue, we must not be guided by an unquestioning acceptance and willingness to espouse these views. Rather, the various approaches that could be taken to polygamy must be critically assessed through the lens of gender equality and protection of the interests of children.⁹⁰
  
  
• The most effective approach to polygamy will be a socio-legal one that considers legal rules as they are in fact lived by individuals. For example, considered in the abstract, polygamy might not seem objectionable since, strictly defined, it can be practised by men and women alike. Yet, in reality, plural marriages are most often assumed by men. Policy responses that fail to consider this and other practical realities of polygamy are dangerous, as they risk diluting the process to the level of abstract legal rhetoric, and making changes that hurt women rather than help them.
  
  
• There must be respect for diversity among women. As discussed throughout this report, women's experiences in polygamy are not homogenous, but largely shaped by their social and cultural contexts. Recognition of this diversity must be at the forefront of policy development, to ensure that no woman is left out of the reform process because she does not fit a particular model of a woman in polygamy (Kaganas and Murray 1991: 134).
  
  
• Law and policy approaches to polygamy must be guided by the goal of facilitating meaningful choices for women so they can avoid and leave circumstances in which they do not wish to be.
  
  
• Policy approaches should be aimed at keeping families together wherever this presents a clear benefit to all family members, especially mothers and children. As witnessed by experiences endured by immigrant women and children in France after the passing of the Loi Pasqua, coerced physical and legal separation of polygamous families can trigger devastating social and economic experiences. Thus, whether in the context of family law, criminal law or immigration law, a pre-eminent objective of polygamy policies should be to ensure that women and their children can remain together, and that they receive adequate support (private or public) to ensure their security.

Recommendations

In view of the foregoing guiding principles, the following recommendations are made.

1. The Parliament of Canada, in particular, the federal Department of Justice, must revisit the criminalization of bigamy and polygamy. These offences are rarely prosecuted and, as discussed, might not be consistent with current social perceptions of marriage. Moreover, the penal consequences that ensue from these offences might place women and children at considerable risk. As such, further study should be undertaken to determine the propriety of maintaining these offences in the Criminal Code.
   
   
2. Where allegations of physical, emotional and sexual abuse have been made within a community, these must be investigated and, where appropriate, relevant charges should be brought and prosecuted by the Crown. This remains the case in the context of communities practising polygamy. If sufficient evidence of abuse and/or assault exists, these can be prosecuted under Canadian criminal law without reference to the bigamy and polygamy provisions.
   
   
3. Given the risks created when families and communities submerge completely into the private realm shielded from state oversight, legislatures must not abdicate their responsibility over family relationships to community and religious authorities. For example, schools must not be shielded from outside monitoring and administration. It is insufficient simply to fund schools and allow their operation to be determined and controlled by religious or community members alone, without other state involvement.
   
   In addition, while communities and families must enjoy freedom from unnecessary and inappropriate state scrutiny and intrusion, complete insularity might also be problematic. The state must retain contact with communities and families at appropriate junctures, such as through schools, hospitals and law enforcement institutions. These points of connection should provide a space where individuals feeling oppressed or harmed by their families or communities can obtain proper support and relief. As such, work must be undertaken in Canada through provincial ministries overseeing health, social services, education, families, women and children to determine the most appropriate and effective points of contact with community members. These points of contact should be used as places where information can be disseminated and questions can be answered in an accessible and confidential manner.
   
   
4. Legal principles must be clarified to ensure that the rights and responsibilities of persons in polygamous marriages in Canada are adequately preserved. Provisions in the Civil Code of Quebec and the Ontario Family Law Act that would grant relief to parties who married polygamously in good faith are strongly endorsed, as these protect the legitimate interests and expectations of parties who would otherwise be extremely vulnerable.
   
   In the private international law context, the situations created when a married Canadian domiciliary marries subsequently in a jurisdiction that allows polygamy must be better understood. Although recognition of the subsequent marriage would run counter to current Canadian law, thought must be given to the predicaments of women and children in these circumstances. In particular, additional study is needed to consider what the most equitable approach would be to ensuring the protection of women who seek immigration to Canada as “subsequent” wives of polygamists, while at the same time taking care to ensure that the rights and interests of a man's first and “legal” family in Canada are not unduly compromised. This requires the involvement of federal immigration and federal and provincial justice officials.
   
   
5. To be positioned to make meaningful choices about whether to enter a polygamous marriage and whether to remain part of it, women must be empowered through information as to their rights and options. Particularly where polygamous marriages might be formed under religious norms within insular communities, outreach strategies are necessary to inform women about their legal status under a religious marriage that is not civilly recognized. Information must also be disseminated in regard to the potential psychological and reproductive health issues that women in polygamy could face. All of this information should be provided free of judgment about plural marriage, and should be neutral in tone and content, with the sole objective of providing accurate and meaningful information to women.
   
   In addition, these outreach measures should strive to inform women who might already be in polygamous unions about resources available to them should they decide to leave their marriages and/or communities. Here again, this information should not be delivered with the objective of encouraging women to flee polygamous life, but instead, should be directed at providing neutral and instructive information for women who might contemplate leaving, but fear doing so for a variety of reasons.
   
   Aside from informational services, women leaving polygamous communities and families may be in need of residential shelter for themselves and their children. These individuals might also need counselling from professionals having an awareness of the spiritual and psychological environment that they have left.⁹¹
   
   Implementing these strategies will be challenging due to various factors, particularly the resources they require, and the fact that polygamy is often clandestinely practised in Canada. Even in Bountiful, where polygamy is openly practised, access to women might be hindered by the insularity of the community. Further thought must be given to determine the most effective ways to establish and sustain contact with women in polygamy. The engaged involvement of women having a present or past membership in polygamous communities will be indispensable to establishing and implementing effective measures in this regard.
   
   
6. Finally, as this report indicates, the issues to which polygamy gives rise are abundant, complex and multi-faceted. Thus, before any legislative reform takes place, it is urged that additional research be conducted that incorporates, as a key part of its methodology, direct communication with women in polygamy. As noted at the outset, it was not possible to undertake such research for the purposes of this report. Nevertheless, the involvement of women in polygamy would benefit future research enormously, as this will enhance secular understandings of women's experiences in this setting, and will help ensure that law and policy strategies will be helpful and meaningful to the women who will be directly impacted by such measures.