Publications

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

An International Review of Polygamy:
Legal and Policy Implications for Canada

ENDNOTES

¹ Hyde v. Hyde and Woodmansee (1866), L.R. 1 P.D. 130 at 133.

² von Struensee (2004: 8). Europe: Cyprus, France, Ireland, Liechtenstein, Portugal, Spain, Switzerland and the United Kingdom; America: Argentina, Canada, Chile, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Paraguay, Peru, Uruguay, Venezuela and the United States; Asia: Bangladesh, Cambodia, China, Nepal, Russia, Singapore, Taiwan, Tajikistan and Vietnam; and Africa: Burundi, Guinea, Ivory Coast, Mauritius, Rwanda, Tunisia and Zaire.

³ In 1926 Turkish Civil Law was adopted, with polygamy and unilateral divorce of men, as permitted under Sharia law, abolished. Although Turkey has a predominantly Muslim population, it is officially a secular rather than Islamic state. See Washington Times (2002).

⁴ (1996), 17 B.L.D. 4 (1997), cited in von Struensee (2004).

⁵ General Recommendation 21, Equality in Marriage and Family Relations, U.N. CEDAW, 13^th Sess., U.N. Doc.A/49/38 (1994).

⁶ General Recommendation 21, Equality in Marriage and Family Relations, U.N. CEDAW, 13 th Sess., U.N. Doc.A/49/38 (1994) at para. 13.

⁷ General Recommendation 21, Equality in Marriage and Family Relations, U.N. CEDAW, 13 th Sess., U.N. Doc.A/49/38 (1994) at para. 14.

⁸ EC, Council Directive 2003/86/Ec of September 22, 2003 On the Right of Family Reunification, [2003] O.J. L. 251/12.

⁹ EC, Council Directive 2003/86/Ec of  September 22, 2003 On the Right of Family Reunification, [2003] O.J. L. 251/12 at para. 11.

¹⁰ In 1878, the Supreme Court of the United States held in Reynolds v. United States (98 U.S. 145 (1878) that the right to religious freedom guaranteed under the First Amendment of the American Constitution was not violated by the law criminalizing bigamy; this decision is still followed in the United States, and very recent decisions have continued to uphold the laws prohibiting polygamy. In 1990, Mauritius' legislation criminalizing polygamy was upheld in Bhewa v. Gov't. of Mauritius (1991 LRC (Const) 298, 307 (May 15, 1990), cited by von Struensee 2005), with the Supreme Court of Mauritius holding that the law was constitutional, despite arguments that the right to religious freedom was violated. In Sarla Mudgal v. Union of India (1995 (3) SCC 635), the Indian Supreme Court upheld legislation making it an offence for a Hindu husband to enter into a polygamous marriage, even if he converts to Islam.

¹¹ Australian Marriage Act 1961 <http://scaleplus.law.gov.au/html/pasteact/0/44/rtf/ MarriageAct1961.rtf>. Accessed September 22, 2005.

¹² U.K., Home Office, Immigration Directorates' Instructions (Chapter 1 Section 8 - Spouses - Annex C) (London: Home Office, May 2003) at 2. <http://www.ind.homeoffice.gov.uk/
ind/en/home/laws___policy/policy_instructions/table_of_contents/
chapter_8/annexes_-_a_-_z__.Maincontent.0004.file.tmp/sec1AnnexC.pdf>. Accessed June 1, 2005.

¹³ Shah (2003 at 392) quoting Douglas Hurd in HC Debs, vol 122, col 785.

¹⁴ U.K., Home Office, Immigration Rules(London: Home Office, 2005).
<http://www.ind.homeoffice.gov.uk/ind/en/home/
laws___policy/immigration_rules.html>. Accessed June 1, 2005.

¹⁵ U.K., Home Office, Immigration Directorates' Instructions (Chapter 1 Section 8 - Spouses - Annex C) (London: Home Office, May 2003) at 2. <http://www.ind.homeoffice.gov.uk/
ind/en/home/laws___policy/policy_instructions/table_of_contents/
chapter_8/annexes_-_a_-_z__.Maincontent.0004.file.tmp/sec1AnnexC.pdf>. Accessed June 1, 2005.

¹⁶ In Rees v. United Kingdom (Series A, N.106; [1987] 9 E.H.H.R. 56.), the European Court held that article 12 of the Convention protects the monogamous concept of marriage. In Janis Khan v. United Kingdom (No. 11579/85 (1986) 48 D.R. 253, cited by Leech and Young 2001 at 303), the European Human Rights Commission held that article 12 did not require that English law recognize an Islamic marriage that would violate English law, because it involved a 14-year-old girl. Since, under article 12, state parties are not required to recognize marriage celebrated according to religious ceremonies or marriages that contravene a state party's domestic law, the European Court of Human Rights is unlikely to find that polygamous marriages are protected.

¹⁷ EC, Council Directive 2003/86/Ec of  September 22, 2003 On the Right of Family Reunification, [2003] O.J. L. 251/12.

¹⁸ State v. Green, 2004 UT 76 at paras. 31 and 25.

¹⁹ 98 U.S. 145 (1878).

²⁰ 98 U.S. 145 (1878) at 167.

²¹ In re Black, 3 Utah 2d 315 (1953).

²² In re Black, 3 Utah 2d 315 (1953) at 343.

²³ State v. Green, 2004 UT 76.

²⁴ State v. Green, 2004 UT 76 at para. 20.

²⁵ Lawrence v. Texas, 539 U.S. 558 (2003).

²⁶ For arguments that polygamy laws may be found to be unconstitutional following the Lawrence decision, see Rower (2004); and Slark (2004). For articles arguing that polygamy laws are constitutional, see Bozzuti (2004) and Ward (2004).

²⁷ Lawrence v. Texas, 539 U.S. 558 (2003) at 562.

²⁸ Lawrence v. Texas, 538 U.S. 558 (2003) at 567.

²⁹ In the 2005 case of Bronson v. Swenson (2005 U.S. Dist. LEXIS 2374), Utah's Criminal Code and constitutional provisions prohibiting polygamy were challenged by polygamists on the grounds that these provisions violate the plaintiffs' right to free exercise of their religious beliefs under the First Amendment and right to privacy under the Fourteenth Amendment of the American Constitution. The plaintiffs argued that their religion, Fundamentalist Mormonism, requires the practice of polygamy, and they brought the action after one of them was denied a marriage licence on the grounds that he was already married. Justice Stewart referred to the Lawrence v. Texas decision, and concluded that, as the United States Supreme Court had carefully delineated the limitations of its ruling, Lawrencecannot be used to require Utah to recognize polygamous marriages as legally valid.

³⁰ See, for example, Sanderson v. Tryon, 739 P.2d 623 (1987); In re Adoption of W.A.T., 808 P.2d 1083 (1991); and Shepp v. Shepp, 2003 PA Super 140 (currently being appealed to the Supreme Court of Pennsylvania (Shepp v. Shepp, 574 Pa. 656 (2003)).

³¹ Sec. 212. [8 U.S.C. 1182].

³² 8 C.F.R. § 316.10.

³³ Hyde v. Hyde and Woodmansee, L.R. 1 P.andD. 130 at para. 3.

³⁴ S.C. 2000, c-12, s. 1.1.

³⁵ Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1^st Sess., 38^th Parl., 2005, (as passed first reading February 1, 2005).

³⁶ There are occasional prosecutions for bigamy in situations where a man has deceived a second woman into believing that he was unmarried at the time of entry into a marriage with her, but in fact had a valid subsisting marriage; see e.g., R. v. Moore, [2001] O.J. No. 4513 (Ont. Ct. Just.).

³⁷ R. v. Tolhurst; R. v. Wright, [1937] 3 D.L.R (Ont. C.A.).

³⁸ R.S.C. 1985, c. C‑34.

³⁹ Utah Code Ann. § 76-7-101(1) (2003) "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

⁴⁰ 2004 UT 76.

⁴¹ See, for example, Ali v. Canada [1998] F.C.J. No.1640.

⁴² See also interviews with B.C. Attorney General CBC 2003).

⁴³ 59 C.C.C. (2d) 461.

⁴⁴ [2004] Q.J. No. 7723.

⁴⁵ [2004] Q.J. No. 7724.

⁴⁶ [1937] 3 D.L.R.

⁴⁷ See Reynolds v. United States, 98 U.S. 145 (1878); Potter v. Murray City, 760 F.2d 1065 (10^th Cir. 1985).

⁴⁸ [1998] F.C.J. No.1640.

⁴⁹ Awwad v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 103.

⁵⁰ R.S.C., 1985 c.1-2.

⁵¹ S.C. 2001, c.27.

⁵² Immigration and Refugee Protection Regulations, S.O.R./2002-227.

⁵³ Hyde v. Hyde and Woodmansee. (1866) L.R. 1 PandP. 130. para. 8.

⁵⁴ R.S.O. 1990,chap. F3, s1(b).

⁵⁵ R.S.O. 1990, chap. S.26, s. 1(b).

⁵⁶ See, for example, Yew v. British Columbia, [1924] 1 D.L.R. 1166 (B.C.S.C.), where limited recognition was given to a widow of an actual polygamous marriage. But contrast Lim v. Lim, [1948] 2 D.L.R. 353 (B.C.S.C.).

⁵⁷ [1983] 2 F.C. 308.

⁵⁸ Hyde v. Hyde and Woodmansee L.R. 1 P.andD. 130 at para. 3.

⁵⁹ [2003 ] O.J. No. 2268 (C.A.).

⁶⁰ Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1^st Sess., 38^th Parl., 2005, (as passed first reading February 1, 2005).

⁶¹ Bronson v. Swenson, 2005 U.S. Dist. LEXIS 2374.

⁶² Reynolds v. United States, 98 U.S. 145.

⁶³ Bhewa v. Gov't of Mauritius, 1991 LRC (Const) 298, 307 (15 May 1990), cited by von Struensee (2005).

⁶⁴ Sarla Mudgal v. Union of India, All India Reports 1995 S.C. 1531.

⁶⁵ Janis Khan v. United Kingdom, No. 11579/85 (1986) 48 D.R. 253, cited by No. 11579/85 (1986) 48 D.R. 253, cited by Leech and Young (2001 at 303).

⁶⁶ [1995] 1 S.C.R. 315.