Publications

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

Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada

EXECUTIVE SUMMARY

This report assesses Canada's laws on the recognition of valid foreign polygamous marriages and argues that the principle of “universality of status” should be given effect. A valid foreign polygamous marriage should be recognized and given effect to the extent that recognition does not violate Canada's essential “public policy.” There is a strong association between polygamy and gender inequality. A fundamental concern is whether either recognizing or failing to recognize valid foreign polygamous marriages would harm women. This report takes the view that the rights of women in valid foreign polygamous marriages should be protected by extending recognition to those marriages. Recognition would not imply endorsement of polygamy or the gender inequality associated with the practice, but rather would protect the parties in such marriages. The report therefore makes various recommendations on extending further recognition to foreign polygamous marriages.

Recognition of valid foreign polygamous marriages raises the issue of how Canadian law should respond to “plural unions” entered into within Canada in some religious communities. The law does not consider such unions to be marriages. They are legal nullities with no civil legal consequences resulting merely from the fact that the parties went through a religious ceremony. There are, however, criminal consequences. Section 293 of the Criminal Code criminalizes polygamy and, by its terms, applies both to those who enter into a plural union within Canada and to parties to a valid foreign polygamous marriage who “practise” polygamy within Canada. This report examines the history, efficacy and constitutionality of s. 293 of the Criminal Code. It concludes that the provision may violate the interests and constitutional rights of parties to both valid foreign polygamous marriages and plural unions. The report also concludes that criminalization does not address the harms associated with valid foreign polygamous marriages and with plural unions, in particular the harms to women. The report therefore recommends that this provision be repealed.

Finally, this report considers arguments for and against permitting polygamous marriages to take place under Canada's domestic laws, specifically, the constitutional arguments that could be made. The report does not recommend that Canada amend its civil marriage law to permit polygamy, but it does consider the possibility that the limitation of civil marriage to two persons may be challenged. The report recommends that Canada prepare for a constitutional challenge to the limitation of marriage to two persons.

The report makes the following recommendations.

1. Canadians with connections abroad may wish to marry among family and friends in countries that permit polygamy. However, under the common law, a marriage entered into by a Canadian domiciliary abroad under a law that permits polygamy is void. This common-law rule should be amended to provide that a marriage entered into outside
   of Canada between parties neither of whom is already married will not be void solely because it took place under a law that permits polygamy and either party is domiciled in Canada. Sections 5-7 of the Private International Law (Miscellaneous Provisions) Act 1995, c. 42 (U.K.), set out in Appendix A, provide a model for this recommended law reform.
   
   
2. Valid foreign polygamous marriages are not fully recognized under Canadian law. Parties to such marriages, particularly women, are likely to suffer if the legal protections of marriage are not extended to them. Provinces and territories that have not already done so should amend marital property laws, spousal support laws, succession laws and related legislation to include in the definition of “spouse” parties to such a marriage. The legislation should indicate how rights and obligations are to be distributed in the case of an actually polygamous marriage.
   
   
3. Parties to a valid foreign polygamous marriage, particularly women, are likely to suffer because they are not able to dissolve their marriage or claim corollary relief under Canada's Divorce Act. Canada should amend the Divorce Act to include in the definition of “spouse” parties to such a marriage. Other forms of “matrimonial relief” should be extended by statute to parties to valid foreign polygamous marriages.
   
   
4. Parties to a valid foreign polygamous marriage, particularly women, are likely to suffer because the public law benefits and burdens of marriage are not fully extended to them. The provinces, territories and federal government should consider amending the definition of “spouse” for the purposes of public law benefits and burdens to include parties to a valid foreign polygamous marriage. The legislation should indicate how benefits and burdens are to be distributed in the case of an actually polygamous marriage.
   
   
5. Parties to a valid foreign polygamous marriage that is actually polygamous are not able to immigrate to Canada as an intact family unit. This rule prevents immigration by parties in such marriages or breaks up the family unit so the husband and one wife can immigrate to Canada. The parties most likely to suffer from this rule are the left-behind wives. Permitting immigration by actually polygamous families would indicate toleration, but not endorsement, of the practice of polygamy within Canada. Canada should consider whether the prohibition on immigration by parties to actually polygamous marriages is necessary.
   
   
6. Criminalization is not the most effective way of dealing with gender inequality in polygamous and plural union relationships. Furthermore, it may violate the constitutional rights of the parties involved. Canada should repeal the prohibition against polygamy and plural unions in s. 293 of the Criminal Code.
   
   
7. A constitutional challenge may be brought to the limitation of marriage to two persons. Canada should prepare for such a challenge, including one that may be based on sex discrimination and initiated by women trapped in religious polygamous marriages.