Publications

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

ENDNOTES

¹ In the interests of specificity, it should be noted that the practice of one male marrying multiple wives is referred to as “polygyny” whereas one woman with plural husbands is known as “polyandry.”

² Bala, for example, writes: “[I]t is revealing that all of the reports in North America of such [polygamous] relationships involve a man who has more than one wife (polygyny), and that none involve a woman with more than one husband (polyandry.” (Bala 2003: 86; Bourdelois 1993: 3-4).

³ This was found to be the case, for example, in Russia, where wives married polygamously under Islamic law were unprotected by state legal norms (BBC 1999).

⁴ As discussed above, research in regard to the experience of immigrant women in polygamous marriages in France also suggests that conflicts between co-wives might rise to the level of physical and psychological violence (Bissuel 2002; Simons 1996).

⁵In this regard, Starr and Brilmayer's (2003) work is instructive. In their study on African women in plural marriages living in France, the researchers describe the marginalization and isolation these women experienced as a result of the hostility and repugnance with which mainstream French society viewed polygamy. While a direct analogy with the women of Bountiful is tenuous, particularly since the latter are not part of an immigrant community, the French and Canadian situations remain comparable given that they are both states governed by secular law, and in which polygamy is prohibited and generally not socially accepted.

⁶ This is not the sole polygamous community described as depriving young women of choice regarding marriage. Starr and Brilmayer's (2003: 246) work, is also noteworthy on this point.

⁷ But as discussed below, some women in Bountiful reject the contention that they are deprived of a choice regarding whether and whom to marry, and deny that their marriages are coerced or pre-arranged (D'Amour 2004b).

⁸ Palmer's discussion of her childhood recollections suggests that members of Bountiful were taught not to trust “gentiles” from outside of the community. The disdain for the secular world is evident in her story (Palmer and Perrin 2004). This dynamic is also discussed throughout the report of the Committee on Polygamous Issues (1993).

⁹ On this point, see also the comments made by Debbie Palmer in a recent media interview (CTV 2005a). The personal histories of six women who have left the Bountiful community, which are reproduced in the report of the Committee on Polygamous Issues, are also illuminating (Committee on Polygamous Issues 1993: 78ff).

¹⁰ See, for example, BBC (2001), which indicates that the practice of allowing polygamy under Islamic law is the principal cause of divorce in the Kingdom of Saudi Arabia.

¹¹ See also BBC (2000).

¹² “Repudiation” is the term that refers to the practice under Islamic law that allows men to divorce women unilaterally without cause and without the wife's consent or presence (M'Sahla 2001: 178ff; Mir-Hosseini 2003: 7).

¹³ See also “Dr. Phil” (2005).

¹⁴ See also CTV (2005a).

¹⁵ In addition to Strassmann's work, note also Simons' article indicating that children of polygamous immigrant women in France often suffer violence at the hands of their mothers' co-wives (Simons 1996).

¹⁶ See, in this respect, the discussion in Part II of this report, which describes jurisdictions that permit polygamy, yet subject to the requirement that a husband can financially support each of his wives and children adequately and equally.

¹⁷ Moge v. Moge [1992]; Rogerson (1997); Sheppard (1995); Grassby (2004) .

¹⁸ See also BBC (2000).

¹⁹ Polygamy was also indicated as a serious risk factor in the spread of HIV/AIDS in Nigeria by the Committee on the Elimination of Discrimination Against Women: See CEDAW, Nigeria (2003: 8).

²⁰ See also Human Rights Watch Zambia (2003).

²¹ The requirements of polygamy in Algeria were also discussed by Sadou (2005). Sadou noted that while Algerian law requires a husband to treat his wives equally, this is an aberration from how polygamous marriages actually function.

²² Rr. Tien Supartinah binti R. Mankudirodo v. R. Koeswiradyo bin R. Wignyosucipto dan Rostini binti M. Soleh, Jakarta Pusat No. 162 (1979) (Indon.) cited in Cammack et al. 1996: 65-66.

²³ CEDAW India (1999: para. 363). Also discussed by Nainar (2005).

²⁴ Nainar (2005) noted, however, that there is a movement among Islamic women for the reform and codification of Islamic personal law to ensure greater gender equality in this sphere. This has been strenuously opposed by conservative voices within the community.

²⁵ Pursuant to section 5(i) of the Hindu Marriage Act, 1955, persons to whom the Act applies may lawfully contract a marriage only if neither already has a surviving spouse. Under s.11 of this statute, marriages that take place in contravention of s. 5(i) are void.

²⁶ Under s. 17 of India's Hindu Marriage Act polygamous marriages are subject to prosecution under ss. 494 and 495 of the Indian Penal Code, 1860. As noted by the court in Lily Thomas v. Union of India & Ors and Other Appeals, [2000] 2 LRI 623 (Lexis) at para. 24, s.17 of the Hindu Marriage Act corresponds to ss. 4 and 5 of the Indian Parsi Marriage & Divorce Act. As such, polygamy also is not recognized under Parsi personal law in India.

²⁷ CEDAW India (1999: paras. 373-74); Lily Thomas, supra note 26.

²⁸ Philippines, Code of Muslim Personal Law, art. 180; Revised Penal Code, art. 349.

²⁹ Philippines, Code of Muslim Personal Law, arts. 27, 53(e), 162.

³⁰ Singapore, Administration of Muslim Law Act, ss. 49(f)(vi), 96(2).

³¹ The distinction between “polygamy” and “bigamy” is not always clear and the terms are often unfortunately intermingled in the literature. In this report, “bigamy” refers to the act of marriage by someone already married or to someone known to be married, whereas “polygamy” refers to the status or situation of having more than one spouse simultaneously (Chapman 2001: 11).

³² See the UK Matrimonial Causes Act, 1973, ss. 11(b), (d) which state that a marriage is void where, at the time of celebration either party was already lawfully married. Section 11(d) extends this provision to marriages outside of the United Kingdom, where the parties were domiciled in the United Kingdom. Plural marriage is also criminalized in the United Kingdom, pursuant to s. 57 of the Offences against the Person Act, 1861. The offence is a felony, punishable by a maximum of seven years imprisonment.

³³ See CEDAW Samoa (2003: 23, 91).

³⁴ In Trinidad and Tobago, polygamy is not recognized, even under the Muslim Marriage Act. Bigamy is considered a criminal offence punishable by imprisonment under the Offences against the Person Act (CEDAW Trinidad and Tobago 2001: 135).

³⁵ Although Islam is recognized as Tunisia's state religion, polygamy was abolished by the Tunisian Code of Civil Status, 1956, which criminally prohibits this practice (Afary 2004; Dangor 2001: 116; Rude-Antoine 1991: 96; Venkatraman 1995: 1980-82; Meziou 1996: 213). Persons who knowingly enter into a polygamous marriage face potential penal sanctions of imprisonment and/or fines.

³⁶ In France, polygamous marriages are considered to be void as against public order. (Bourdelois 1993: 180ff), and are prohibited under the French Civil Code (art. 147) and the Code Pénal (art. 433-20). Contravention could entail punishment by way of imprisonment for a year and a fine of €45,000.

³⁷ Polygamous marriages are void under Australian law and criminally prohibited. See Australia, Marriage Act, 1961 1961/12 as am., ss. 23 (1)(a), 23B(1)(a) and 94. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Holland, where a subsequent polygamous union celebrated in Australia was refused recognition.

³⁸ Polygamous marriages by persons domiciled in New Zealand are both void and criminalized. See ss. 2 and 31(1)(a)(i) of the Family Proceedings Act 1980; Quilter v. Attorney-General (1997), (1998), and ss. 205-207 of the Crimes Act, 1961.

³⁹ The criminal law of Hong Kong deems bigamy to be a criminal offence carrying a possible sanction of imprisonment. HLHK Criminal Law and Procedure 286 (February 15, 2004) (Lexis). Under family law legislation, a married man's concubine might, however, have spousal rights and privileges if accepted by the husband's family. HLHK Family Law 2 (February 15, 2004) (Lexis).

⁴⁰ Marriage and family relations are governed by the Marriage Law of the People's Republic of China. Under article 2, marriage is monogamous. Article 3 provides that bigamy and cohabitation with a married person are prohibited. Bigamy by a spouse renders a marriage invalid (article 10(1)), but this may not prejudice the matrimonial property interests of the parties to the lawful marriage (article 12). Bigamy is cause for divorce (art. 32(1)) and the aggrieved party can seek damage compensation under article 46. Bigamy may also be viewed as a criminal act (art. 45).

⁴¹ This is pursuant to art. 340 the Criminal Code of Madagascar. See also CEDAW Madagascar (November: 33).

⁴² See CEDAW Paraguay (2004: 7).

⁴³ Polygamy is prohibited under the Marriage and Family Code. See Georgia, Initial Report of States Parties to CEDAW (10 March 1998) at 10, 24.

⁴⁴ Pursuant to Kazakhstan's Marriage and Family Code, polygamous marriages are not recognized. The country's 1998 Criminal Code did not, however, recognize polygamy as an offence, even though this had been the case under the prior Code. See CEDAW Kazakhstan (2000:  69).

⁴⁵ CEDAW Thailand (1997: 66). Despite the legal prohibition, Bao indicates that polygamy continues to be practised in Thailand, through ceremonial - but unregistered - marriages (Bao 2005: 80-81).

⁴⁶ In Viet Nam, the Marriage and Family Law, 2000 identifies monogamy and spousal equality as among the fundamental principles of marriage and family relations, and declares polygamy to be illegal (Wisensale 1999: 604). See also CEDAW Viet Nam (2000: 44).

⁴⁷ Although Armenia does not recognize plural marriages, polygamy is not sanctioned by the country's Criminal Code, since it is not viewed as a current problem in that country (CEDAW Armenia 1999: 27).

⁴⁸ The adoption of the secular Civil Code in Turkey in 1926 replaced Islamic law, and prohibited polygamous marriage. The Code further allows a court to declare a second marriage concluded in violation of this prohibition invalid (Welchman 2000: 185; Dangor 2001: 116). Nevertheless, at least one report indicates that polygamy continues to be practised in this jurisdiction. See DW-World (2005).

⁴⁹ Nepal's Country Code states, “No male shall, except in the following circumstances, marry another female or keep a woman as an additional wife during the lifetime of his wife or where the conjugal relation with his first wife has not been dissolved under the law: [i] If his wife has any contagious venereal disease and has become incurable; [ii] If his wife has become incurably insane; [iii] If no child has been born or remained alive within ten years of the marriage; [iv] If his wife has become lame and unable to walk; [v] If his wife has become blind of both eyes; [vi] If his wife has lived separately after obtaining her partition share under No. 10 or No. 10A of the Chapter on Partition.” Muluki Ain 2020 [Country Code 1963] cited in Human Rights Watch Nepal (2003).

⁵⁰ While the leader of the northern Russian area of Ingushetia declared polygamy legal (Dubnov 1999), this decree was shortly dismissed as unconstitutional by the Russian Justice Minister. See BBC (1999).

⁵¹ Reynolds v. United States (1878); Whitehead 1997: 34-38. See also the recent case of Bronson, Cook and Cook v. Swensen (2005).

⁵² See R. v. Moore [2001]; R v. Moustafa [1991]; and R. v. Sauvé [1997]. However, in a somewhat older case, a husband convicted of bigamy was sentenced to two years, six months imprisonment. See R. v. Young [1965].

⁵³ See Moore, ibid.

⁵⁴ Bill C-38, recently introduced in the House of Commons, defines civil marriage in s. 2 as “the lawful union of two persons to the exclusion of all others.” Thus, while the Bill would allow for recognition of same-sex marriages, the wording ensures that only monogamous marriages - whether homosexual or heterosexual - will be recognized.

⁵⁵ This is clarified under the definition of “spouse” within s. 1 of Ontario's Family Law Act (F.L.A.), as well as within articles 380-390 of the Quebec Civil Code. See also G.P. v. B.M. (2002). In Ontario, although a polygamous party in bad faith is not a “spouse” within the general definition of this term in s. 1 F.L.A., a court might still be willing to find a way to extend matrimonial relief to such persons. See Reaney v. Reaney [1990]. In addition, spouses in bad faith might be entitled to spousal support, given that the definition of spouse for the purposes of support (found in s. 29 F.L.A.) is broader than the general definition in s. 1 F.L.A.

⁵⁶ See CEDAW Eritrea (2004: 53ff).

⁵⁷ See CEDAW Nigeria (1997: 62ff; 2003: 8, 54-55).

⁵⁸ See also CEDAW Kenya (2000: 38-39).

⁵⁹ See also CEDAW Uganda (2000: 66); Human Rights Watch Uganda (2003).

⁶⁰ See CEDAW Zambia (1999: 64).

⁶¹ See CEDAW Namibia (1997: 170-172).

⁶² See CEDAW Guinea (2001: 114-115, 121-123).

⁶³ See also CEDAW Zimbabwe (1996: 59).

⁶⁴ Also discussed by Manjoo (2005).

⁶⁵ Manjoo (2005), however, has discussed the shortcomings of this bill, indicating that it satisfies no group within South Africa.

⁶⁶ As in South Africa, for example, where customary marriages must be registered under s. 4 of the Recognition of Customary Marriages Act, 1998.

⁶⁷ Although the discussion in this section refers to “English” law primarily, it should be noted that generally, the law throughout the United Kingdom in this area is uniform. For reference to Scottish legal principles in this area see Shah (2003: note 1); Esplugues (1984: 309-10).

⁶⁸ Hyde v. Hyde [1866]; In re Bethell [1887].

⁶⁹ A “potentially” polygamous marriage is understood as one formed in a jurisdiction where polygamy is recognized, but that has not actually become polygamous (i.e., there are still only two spouses).

⁷⁰ Section 47 of the Matrimonial Causes Act, 1973 grants matrimonial relief to parties in a polygamous marriage validly formed outside the United Kingdom.

⁷¹ As noted earlier, ss. 11(b) and (d) of the Matrimonial Causes Act, 1973 prohibits persons domiciled in the United Kingdom from marrying polygamously, whether in England or abroad.

⁷² Private International Law (Miscellaneous Provisions) Act 1995, ss. 5 and 7 (section 7 extends this law to Scotland). This provision was enacted in response to Hussain v. Hussain [1982], a case in which an English domiciliary claimed that his marriage was unlawful under s. 11(d) of the Matrimonial Causes Act 1973. Although the marriage was in fact monogamous, the husband argued that it should not be recognized since, having been celebrated in a jurisdiction that recognized polygamy, it was potentially polygamous. While the English Court of Appeal rejected his argument, its reasoning was considered dissatisfactory by commentators and law commissioners. Legislation was thus enacted to clarify the treatment of de facto monogamous marriages formed in jurisdictions where plural marriage is accepted (Shah 2003: 377ff; Briggs 1983; Pearl 1983; Chapman 2001: 14, 45-46).

⁷³ Aside from the right to matrimonial relief recognized under s. 47 of the Matrimonial Causes Act, 1973, other U.K. legislation includes specific provisions explicitly recognizing validly formed polygamous marriages (Chapman 2001: 45-50; Martin 1994: 425). See e.g., State Pension Credit Act 2001; State Pension Credit Regulations 2002; Social Security (Loss of Benefit) Regulations 2001, ss. 3A, 10(1)(a), 11(2)(b) and (e); Child Benefit (General) Regulations 2003, s. 35; Child Support, Pensions and Social Security Act 2000, s. 10C; Social Security (Breach of Community Order) Regulations 2001, s. 6.

⁷⁴ Family Law Act 1975, s. 6; Marriage Act 1961, s. 88C(1)(a).

⁷⁵ Marriage Act 1961,s. 88D(2)(a).

⁷⁶ Family Proceedings Act 1980 (N.Z.), 1980/94, ss. 2 and 31(1)(a)(i). See also Quilter v. Attorney-General (1997), (1998).

⁷⁷ Supra, note 36.

⁷⁸ Article 3, Code Civil Français.

⁷⁹ See e.g., Lim v. Lim (1948).

⁸⁰ Kaur v. Ginder, Ginder v. Kor (1958); Sara v. Sara (1962) (varied in part on appeal in a judgment that recognized the polygamous marriage); Re Quon (1969); and Hassan v. Hassan (1975). In these judgments, courts adopted the doctrine of “conversion” which had been developed in English common law, to conclude that potentially polygamous marriages formed abroad had become monogamous once the parties relocated to Canada.

⁸¹ Ontario, Family Law Act, s.1(2); Ontario, Succession Law Reform Act, s. 1(2).

⁸² Civil Code of Quebec, arts. 3088, para. 1 and 3083.

⁸³ Civil Code of Quebec, art. 3081.

⁸⁴ R.B. v. United Kingdom (1992).

⁸⁵ See M & O.M. v. The Netherlands (1986); E.A. & A.A. v. The Netherlands (1989).

⁸⁶ Re Immigration Act and Bains (1954); Tse v.  Minister of Employment and Immigration [1983]; and L.J. c. Ministre des relations avec les citoyens et de l'immigration (2002) [L.J.].

⁸⁷ Ali v. Canada, [1998]; Awwad v. Canada (Minister of Citizenship and Immigration), [1999]. See also L.J., ibid., where interestingly two of a husband's wives were previously allowed entry into Canada as refugees, but an application for sponsoring a third wife was refused on the premise of the polygamous nature of the parties' marriage.

⁸⁸ Canada, Immigration and Refugee Protection Regulations S.O.R./2000-227, s.117(9)(c).

⁸⁹ The potential nefarious consequences of criminally prosecuting family members for polygamous practices are revealed throughout Solomon's (2003) account of her childhood in an American Fundamentalist Mormon community.

⁹⁰ This understanding of the difference between cultural relativism and cultural sensitivity is based on the astute observations communicated by Professor Bakht (2005).

⁹¹ Similar recommendations were advanced by the Committee on Polygamous Issues (1993: 109-110), based on its assessment of polygamy in Bountiful.