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

3. LEGAL TREATMENT OF POLYGAMY: OTHER COUNTRIES

The Trend Toward Prohibition of Polygamy: The International Context

There are three major issues in regard to the legal treatment of polygamy in Canada and in other countries.

• Will a state allow people to enter into a legally valid polygamous marriage?
  
  
• If a state does not allow people to enter into a legally valid polygamous marriage, will the state nevertheless recognize a polygamous marriage that was validly entered into in a country where such marriages are legal, at least for some legal purposes?
  
  
• Is entry into or cohabitation within a polygamous union a criminal offence?

Many states in Asia and Africa allow for legally valid polygamous marriage. However, with growing recognition of the importance of gender equality and increasing concerns about the effects of polygamy on women and children, there has been a clear trend over the past century towards the enactment of laws to abolish polygamy. There is now explicit legislation to declare invalid or criminalize polygamous marriages in at least eight European countries, fourteen American countries, nine Asian countries and seven African countries.²

Among the countries that have prohibited polygamy are several with predominantly Muslim populations. Tunisia prohibited polygamy more than 40 years ago (von Struensee 2004). Turkey, which has a predominantly Muslim population but is officially a secular rather than Islamic state, abolished polygamy in 1926.³ Furthermore, in Bangladesh, a country that still allows polygamy, in Jesmin Sultana v. Mohammed Elias, the High Court questioned, on its analysis of the Koran, whether Muslim law truly permits polygamy in the modern context.⁴

Of the countries that still permit polygamy, a number are moving toward limiting or abolishing the practice. In Uganda, for example, a bill tabled in December 2003 before Parliament limits to four the number of wives a man may have and requires the existing wife or wives to consent, in court, in order for the husband to marry an additional wife (von Struensee 2004). Before a man is permitted to marry an additional wife, he must also show that he has the financial capability to maintain an additional wife and children, and that he is capable of giving the same treatment to all the wives. While this bill is not a complete prohibition on the practice of polygamy, it is a significant change from the current law, and controversial in Uganda, where there is no maximum number of wives one man may marry and no requirement that the previous wives consent to any additional marriages.

In Morocco, the Minister of Justice announced in February 2005 that there had been a 10 percent decrease in the number of new polygamous marriages during 2004. He attributed this decrease to the changes to Moroccan family law, which went into effect in 2004 and were intended to strengthen women's rights (Agence France Presse French Wire 2005).

At the international level, while polygamy is not explicitly prohibited in any international treaties, it violates such basic human rights as the right to protection of the dignity of women, the right to equality within the family and the right to equal protection of women under the law (von Struensee 2005). It is widely accepted that the practice of polygamy is inconsistent with article 16(1) of the Universal Declaration of Human Rights, which provides that men and women are entitled to equal rights as to marriage, and article 16(1)(b) of the Convention on the Elimination of Discrimination against Women, which guarantees the right to freely choose a spouse and enter into a marriage with free and full consent. Further, polygamy is inconsistent with article 23(4) of the International Covenant on Civil and Political Rights, which requires state parties to take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage. Those provisions refer to the institution of marriage as based on the equality of the husband and wife. von Struensee (2004: 2, 21) argued that "the practice of polygamy directly contradicts the principle of equality because it grants one spouse the unilateral right to take multiple partners without spousal consent and then requires the first spouse to share the resources of the marriage as a result of that decision."

In 1994, the United Nations Committee on the Elimination of Discrimination against Women focussed on the rights of women within the context of the family and analyzed articles of the Convention on the Elimination of Discrimination against Women that relate to polygamy.⁵ Though the Committee accepted that the "form and concept of the family can vary from State to State,"⁶ the Committee was emphatic that polygamous marriages are not acceptable, because they violate women's right to equality with men. The Committee expressed its concern about practices in several countries as "[p]olygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependants that such marriages ought to be discouraged and prohibited."⁷ The Committee concluded that in several states the continuing practice of polygamy violates constitutional guarantees of equal rights for women, as well as Article 5(a) of the Convention, which requires state parties to work toward the elimination of practices founded on sex-based prejudice or stereotypes.

The Council of the European Union also addressed the issue of polygamy, directing states to limit immigration by parties to polygamous marriages. The Council published a directive on September 22, 2003 about family reunification.⁸ It applies to all European Union member states, with the exception of the United Kingdom, Ireland and Denmark. The directive states that, out of concern and respect for the rights of women and children, it is acceptable for member states to use "restrictive measures" against applications for reunification from polygamous families.⁹ Under paragraph 4 of article 4, the directive states: "In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse." Article 4 also provides that Member States may "limit the family reunification of minor children of a further spouse of the sponsor."

Legislation prohibiting and criminalizing polygamy is not uncontroversial. In a number of countries, such legislation has been attacked as unconstitutional, principally on the basis that it violates constitutional guarantees of freedom of religion, but these laws have survived those challenges.¹⁰

In the next section, we consider the legal treatment of polygamy in a number of industrialized western countries. All of these countries have predominantly Christian heritages and a tradition of monogamous marriage, but all also have growing Muslim populations and are having to address issues related to the recognition of polygamous marriage. In the United States, as in Canada, there is also a domestic tradition of Fundamentalist Mormon polygamous communities going back over several generations.

Western Countries with Growing Muslim Populations

Australia

Section 94 of the Australian Marriage Act, 1961 makes it a criminal offence for a person who is already married to go through a second form of ceremony of marriage,¹¹ making entry into a polygamous marriage in Australia a criminal offence. Further, any such marriage is regarded as void in Australia and any other common-law jurisdiction. Under s. 6 of the Family Law Act, however, a polygamous marriage contracted in a foreign jurisdiction that permits for such marriages will be recognized in Australia for the purposes of that Act, including giving every wife in such a marriage the right to make a property or spousal support claim on separation, provided the spouses were domiciled in that foreign country when the marriage was entered into (Reynolds 2002).

For the purposes of immigration, however, if a man is married to more than one woman, he may only bring one wife to Australia (Australia 2002). Furthermore, the Australian Law Reform Commission noted that "recognizing the legal status of polygamy would…offend the principles of gender equality that underlies Australian laws" (Australia 1992: at para 5.10). In its 1992 report, Multiculturalism and the Law, the Australian Law Reform Commission recommended that Australia continue to recognize only polygamous marriages entered into in foreign countries, and only for limited purposes.

Germany

It is not possible to enter into a valid polygamous marriage in Germany (Fournier 2004). Germany will not allow a man to claim more than one wife for the purposes of being sponsored to immigrate to Germany (Rohe 2003). However, Germany gives limited recognition to polygamous marriages celebrated and valid in a foreign country, by permitting wives in a polygamous marriage to claim spousal support in German courts. Further, legislation provides that the death benefit payable under social security legislation to a widow in a monogamous marriage is to be divided equally among all widows if the husband entered into a valid polygamous marriage in a country that allows for such unions.

France

The French Civil Code provides that a married person may not enter into a second marriage while the first still exists, and French courts have repeatedly held that second marriages conducted in France are void and without legal effect (Fournier 2004). France will, however, recognize a foreign polygamous marriage as having limited validity in France if it was contracted in a country that recognizes such marriages as valid and if the spouses possess citizenship of that country. Between 1980 and 1993, France permitted the reunification of polygamous families, allowing men who were resident in France to bring more than one wife into France to live with them. This resulted in significant numbers of polygamous families living in France, principally with a West African origin.

Since 1993, the French government has been attempting to reduce the number of polygamous households. It was estimated in 1993 that as many as 150,000 people in France were living in polygamous families. Citing problems like large families resulting in lack of appropriate housing, heavy burdens on social services, and the detrimental effects that such relationships have on women and children, in 1993 France enacted legislation to require polygamous families to "de-cohabit" (France 2002). A male immigrant who has multiple spouses will not be given legal residence papers unless he resides with only one spouse. As well, only the first wife will be granted legal residence papers, and other multiple wives are required to separate from the husband before they can obtain legal residence papers. While those living in polygamous marriages are unable to work legally in France without a legal residence card, if they are parents of children with French citizenship (i.e., born in France) they cannot be deported.

Since 1993, men who married multiple wives elsewhere can legally bring only one wife and her children to France, while the children of the other wife or wives will only be permitted to join their father in France under limited circumstances (Fournier 2004). There have also been efforts in France to encourage "de-cohabitation" of multiple wives by disentitling them to social assistance if they reside with their husband. In practice, however, this can be very difficult to police.

United Kingdom

One cannot enter into a valid polygamous marriage in England. Although there is no criminal offence of polygamy, bigamy is a criminal offence under the Offences Against the Person Act s. 57, which effectively makes it an offence to enter into a polygamous marriage in England. However, under the Matrimonial Causes Act, 1973, the United Kingdom considers marriages contracted on or after August 1, 1971 as being valid, if both parties had personal capacity under the law of their respective domiciles to enter into the marriage and if the marriage is valid in the country in which it took place. This allows for the legal recognition for certain family law purposes of polygamous marriages in England.

The United Kingdom has a policy of "prevent[ing] the formation of polygamous households" in the United Kingdom.¹² This policy is achieved, in part, through s. 2 of the Immigration Act, 1988, which allows only one of the wives involved in a polygamous marriage to be sponsored by her husband to immigrate to the United Kingdom. In a debate over the enactment of that Act, then Home Secretary Douglas Hurd stated that the number of polygamous wives entering the United Kingdom was minimal, but that "polygamy is not an acceptable social custom in this country."¹³ Shah (2003: 392) argued that, while polygamy was originally prohibited in Britain because of arguments grounded on the Christian view of marriage in that country, those arguments have now "metamorphosed into the unacceptability of the custom on grounds of ‘community relations' or the norms of gender equality and human rights."

Although generally only one wife is permitted to enter England, the Immigration Act, 1988 provides for an exception in the case of a wife who entered the United Kingdom before August 1, 1988 and was admitted on the basis of her marriage. The Act also provides for an exception in the case of a woman who entered the United Kingdom after her marriage and while her husband was not living in the United Kingdom with a different wife. Shah (2003) noted that, under the Immigration Rules, a second wife could, in theory, also enter the United Kingdom as a visitor or a refugee, and observed that some multiple wives and their children may be living with their husbands in England illegally.

Under the Immigration Rules, para. 296 of HC 395, if a wife party to a polygamous marriage is denied entry, her children will be denied entry as well. Under certain extenuating circumstances, such as the death of their mother, those children may qualify for entry to live with their father.¹⁴ It is also noteworthy that, to avoid a potential claim of gender discrimination, para. 278-280 of HC 395 were amended to include polyandrous marriages (one wife and more than one husband), as well as polygynous marriages (one husband and more than one wife).¹⁵

Ongoing concern about the practice of polygamy in the United Kingdom is indicated by the recently enacted Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004. Section 14 increases the powers of arrest of immigration officers to include a situation where the immigration officer has formed a reasonable suspicion that a person has committed or attempted to commit one of a number of crimes, including bigamy.

The British Human Rights Act 1998 came into force in October 2000, prompting media reports that the British policy of not permitting polygamous marriages might be vulnerable to a human rights challenge under the European Convention for the Protection of Human Rights and Fundamental Freedoms (Malik 2000). Article 12 of the Convention, which guarantees the right to marriage and to found a family, was incorporated into British law by the Human Rights Act 1998.¹⁶ However, while the Directive of the Council of the European Union (discussed above) to limit immigration by parties to polygamous marriages is not directly applicable to the United Kingdom, it may well be indicative of how the Convention will be interpreted, suggesting that the United Kingdom policy does not violate the Convention.¹⁷

United States

Bigamy is an offence in all states of the United States, which makes it an offence to enter into a polygamous marriage. Several states, including Utah, Texas, Colorado and Rhode Island, have specifically defined "bigamy" to include cohabitation in a polygamous relationship, not just multiple marriages.¹⁸ In the United States, the issue of polygamy has most frequently arisen in relation to Fundamentalist Mormons (Rower 2004), who have continued to practise polygamy after the main Mormon Church ceased to endorse polygamy in the 1890s. In 1878, in Reynolds v. United States,¹⁹ a conviction for the offence of bigamy based on the practice of polygamy was upheld by the United States Supreme Court. At that time, the precepts of the Mormon religion, to which Reynolds belonged, required the accused to practise polygamy. The Court, however, held that the Free Exercise Clause protects religious beliefs, not practices, and that the proscription against polygamy was within Congress' power. The Court stated that, if it accepted the argument that the Constitution allowed a person to disregard the laws on bigamy that conflicted with his religious beliefs, it would "in effect…permit every citizen to become a law unto himself."²⁰

A number of communities in the United States have significant numbers of Fundamentalist Mormon polygamous families, two of the largest being Colorado City, Arizona and Hildale, Utah. In 1953, the state of Arizona organized a raid, encouraged by Governor Pyle and members of the established Mormon Church, against the Fundamentalist Mormon polygamists living in Short Creek (as Colorado City was then called). More than a hundred adults were arrested for practising polygamy, and almost 300 children were taken from their parents' care and placed in foster homes under child protection agency care (Rower 2004). The raid was a public relations disaster for Governor Pyle, who had anticipated public support, but was instead voted out of office. The media portrayed the polygamists sympathetically, as persecuted, religious Americans. Many people were also angered by the tactics state officers used during the raid (Otto 1991). The negative aspects of polygamy, such as underage brides, were glossed over, while the focus was instead on photographs of government officials forcibly removing sobbing children from their mothers (Rower 2004).

One case to arise from the 1953 raid was In re Black,²¹ dealing with an application by the child protection agency to remove children from parental care. The Juvenile Court ordered that the children were to be removed from the custody of the husband and their mother, one of his plural wives, on the basis that the "home of the parents is an immoral environment for the rearing of children" and that the parents had "knowingly failed and neglected to provide for said children the proper maintenance, care, training and education contemplated and required by both law and morals."²² On appeal, the Utah Supreme Court upheld the decision. Eventually, after the parents agreed to comply with state laws prohibiting polygamy and not to teach their children about polygamy, the children were returned to the care of their parents (Otto 1991). Within two years of the raid, most of the children of Short Creek who had been placed in foster care were allowed to rejoin their mothers and the men were released from prison.

Since the 1950s, there have been occasional prosecutions for polygamy, but as Jerrold Jensen, an Assistant Utah Attorney General, acknowledged, but in theory the state of Utah could prosecute those in polygamous relationships for bigamy, the practice has been to prosecute only if another offence, such as a marriage to an underage girl, is involved (Manson 2005). This is what occurred in one of the most recently prosecuted polygamy cases in Utah. Rower (2004: 720) described Utah prosecutor David Leavitt as being "compelled to initiate charges" against Tom Green, because he had appeared on the television show Dateline NBC in 1999, boasting about his several wives and, more importantly, the young age at which they married him. Green was charged and convicted of criminal non-support, statutory rape of a child and four counts of bigamy. Green was convicted on the charge of statutory rape of a child, having been found to have "spiritually married" 13-year-old Linda Kunz in 1985. She conceived a child two months after the "marriage" and two months after the child's birth they married legally to shield Green from charges of child molestation.

Green's appeal of his conviction for bigamy on the grounds that the law violates freedom of religion as guaranteed by the American Constitution was rejected.²³ The Utah Supreme Court noted that, although Reynolds was decided more than a century ago, the United States Supreme Court has continued to cite it with approval. The Utah Court also found that the bigamy law would "survive a federal free exercise of religion challenge under the most recent standards enunciated by the United States Supreme Court." Under this test, "a neutral law of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice."²⁴ The state is only required to show that the statute is rationally connected to a legitimate government purpose. The Utah Supreme Court found that the object of the bigamy statute was not directed at restricting a religiously motivated practice, that the statute was written in neutral, secular terms and that the state has an interest in the regulation of marriages, as a whole network of laws is based on marriage and the concept of monogamy and a rejection of polygamy, as well as an interest in protecting vulnerable people from abuse and exploitation.

The 2003 United States Supreme Court decision in Lawrence v. Texas,²⁵ dealing with the constitutional protection of intimate sexual contact from state interference, created controversy in the academic literature about whether laws criminalizing polygamy will also be declared unconstitutional.²⁶ In Lawrence, Justice Kennedy held for the majority of the Supreme Court that the Texas "Homosexual Conduct" law was unconstitutional as a violation of the due process clause of the Fourteenth Amendment of the American Constitution. Justice Kennedy held that the constitutionally protected "liberty interest" includes a number of freedoms, including freedom to engage in intimate sexual conduct, and that it protects against "unwarranted government intrusions" into the home.²⁷ The Supreme Court held that the impugned law sought to control "the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."²⁸

The Court held that criminalizing this behaviour impacts the dignity of those charged. The Court discussed the history of the laws against sodomy, and the repeal of similar laws in foreign jurisdictions. Justice Kennedy was careful to limit the "liberty interest," emphasizing that the law in question and case before the Court did not involve minors or coercion, and the nature of the consent was not in issue. Since Lawrence v. Texas, the Federal Court in Utah has upheld the state's statutory and constitutional anti-polygamy provisions as not violating the United States Constitution.²⁹

While American immigration law severely restricts the ability of those practising polygamy to immigrate to the United States and the practice of polygamy is prohibited by criminal law, polygamy is treated less harshly in the context of cases involving the care of children. Michael Otto (1991: 884) observed that recent child custody cases "represent[ing] a marked departure" from the 1955 decision In re Black. Although living in a polygamous marriage is clearly regarded as a negative factor when courts are making "best interests of the child" decisions, the practice of polygamy does not automatically preclude a parent from gaining custody or adopting a child.³⁰

Section 1182(a)(9)(A) of the Immigration and Nationality Act³¹ provides that immigrants coming to the United States who practise polygamy are a "class of excludable aliens who are ineligible to receive visas and who shall be excluded from admission into the United States." The United States Immigration and Naturalization Service will not grant a Permanent Resident Card or citizenship to anyone lacking "good moral character" during the statutory period.³² The determination will be made that an applicant lacks "good moral character" if, among other grounds, the applicant "has practiced or is practicing polygamy." Effectively, an American citizen cannot sponsor the immigration of a spouse in a polygamous marriage (US 2003).