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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

I. INTRODUCTION

This report reviews Canada's laws on the recognition of valid foreign polygamous marriages and assesses whether further recognition of such marriages is warranted. The discussion of foreign polygamous marriages raises the issue of how Canadian law should respond to “plural unions” entered into within Canada in some religious communities. Such arrangements will be referred to as plural unions throughout this report. Although there are no civil legal consequences resulting merely from the fact that the parties went through a religious ceremony, there are criminal consequences. The Criminal Code prohibition of polygamy applies both to those who enter into a plural union within Canada and to parties to a foreign polygamous marriage who “practise” polygamy within Canada. This report considers whether criminalization in either case is appropriate and whether the prohibition would withstand a constitutional challenge.

This report emphasizes that neither the recognition of valid foreign polygamous marriages nor decriminalization is an endorsement of polygamy. On the contrary, polygamy is very widely associated with gender inequality and should not be endorsed. However, recommendations in the report on the issues of expanded recognition of foreign polygamous marriage and of decriminalization may be mistaken by some as endorsements of the practice and as support for allowing polygamous marriages to take place in Canada. To address any such misapprehensions, the 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 permit polygamous marriages to take place in this country, but does recommend that Canada prepare for a possible constitutional challenge to the limitation of marriage to two persons.

What Is a Polygamous Marriage?

Under Canadian law, a polygamous marriage is one that is celebrated under a system of law that permits a party to take more than one spouse at a time.¹ If this requirement is met, a marriage is characterized as polygamous, whether it is “potentially polygamous” or “actually polygamous.”² If only one spouse is taken, the marriage is potentially polygamous. If more than one spouse is taken, the marriage is actually polygamous. The term “polygamy” comprises both “polyandry,” the system under which a woman is married at the same time to two or more men, and “polygyny,” the system under which a male is married to more than one woman at a time (Walker 1980: 967-68). Polyandry is rare, but polygyny has been found in many societies (Walker 1980; Mair 1971: 143).

In legal terms, a polygamous marriage can only take place in a country that permits polygamy.³ A marriage celebrated in Canada according to the relevant provincial marriage act is monogamous. If parties go through a ceremony of marriage in polygamous form in Canada without going through a ceremony in accordance with the relevant provincial marriage act, the marriage is a nullity.⁴ This is so regardless of the domicile of the parties.⁵ If either party is in an existing marriage, any subsequent marriage celebrated in Canada is a nullity.⁶

The term “polygamy” is also used by some in reference to plural unions that are celebrated by religious communities within countries that do not permit polygamy.⁷ Such arrangements are not marriages under Canadian law. They are legal nullities, and no civil legal consequences result from going through such a religious ceremony. This report initially focusses on the issues relating to polygamous marriages as legally defined. Plural unions celebrated within Canada are then included in the discussion of criminal sanctions for polygamy and in the discussion of whether Canada should amend its civil marriage law to allow polygamous marriages.

A potentially polygamous marriage may be converted to a monogamous marriage if the parties adopt a monogamous religion⁸ or acquire a domicile in a country whose law requires that marriages be monogamous,⁹ or if the place of celebration amends its laws to disallow polygamy.¹⁰Thus, parties to a potentially polygamous marriage who acquire a Canadian domicile will have their marriage converted automatically to a monogamous marriage. A party acquires a Canadian domicile by taking up residence in Canada with the intention of remaining there permanently or indefinitely.¹¹

The Practice of and Reasons for Polygamy

Polygamy was permitted in most parts of the world at one time, but there has been a move away from the practice. Monogamy is now the rule in eastern and western Europe, North America, South America, Central America, Australia, New Zealand and large parts of Asia, including Japan and China.¹² Although India continues to permit Muslims to enter into polygamous marriages, 80 percent of its population is governed by the Hindu Marriage Act, which permits only monogamous marriage.¹³ In many of the Asian, Middle Eastern and African countries that still permit polygamy, the rules governing the practice have been made more stringent,¹⁴ and actually polygamous marriages are the exception rather than the rule.¹⁵ In Islamic countries, only the wealthier men are able to comply with the Koran's requirement that a man who takes on more than one wife be able to afford each of them and their children equal protection and benefit.¹⁶

Anthropologists suggest that the reasons for, or functions of, polygamy include the following.

• Increase the probability of children, particularly when a wife is barren or gives birth to female children only.
  
  
• Increase the labour supply within a kinship network.
  
  
• Deal with the “problem” of surplus women.
  
  
• Expand the range of a man's alliances so he is able to maintain or acquire a position of leadership.
  
  
• Perhaps provide sexual satisfaction to men, particularly in societies with lengthy post-partum sexual taboos (Macfarlane 1986: 217-221; Mair 1971: 152-153).

Polygamy is also commonly found in closed cultures where open displays of courtship and affection are shunned. As well, polygamy has historically been used in place of divorce in countries with limited grounds for divorce and high thresholds for proving those grounds (Marasinghe 1995: 72-73).

Social scientists have given various theoretical explanations for the practice of polygamy. Alexander,¹⁷ Betzig¹⁸ and MacDonald¹⁹ offered variants of a “male compromise” theory, which explains polygamy as resulting from socio-economic stratifications among men. They argued that monogamy is the result of a compromise among men usually following democratic development, whereby the wealthy, powerful men surrender polygamous practices and multiple wives in exchange for political support from poor men. The male compromise theory is based on Richard Alexander's theory that nation-states impose monogamy on their male citizens to equalize their reproductive opportunities.

Kanazawa and Still (1999) argued for a “female choice” theory of marriage practices, which posits that women are in the position of demanding a particular marriage form based on the availability and status of men. Where resource inequalities are great among men, women will choose to marry polygamously. Where inequalities are comparatively low, women will chose to marry monogamously. This theory is female-empowering and functional. It recognizes polygamy or monogamy as rational choices to be made in accordance with social determinants, such as resource inequality. However, it has been criticized for failing to account for the political reality that undermines this choice. In addition, the politics of inequity underlying the practice of polygamy (where there are child brides, for example) are often misattributed to the institution of polygamy. Morrison and Jutting (2004: 16) wrote: “Polygamy entails inequality between men and women because usually there is a difference of 20 to 30 years between the second (or third) wife and her husband.”

Sanderson argued that polygamy is really about male choice and preference for sexual variety to ensure male reproductive success. The extent of the opportunity to seek sexual variety may vary, however, with social circumstances, such as the degree to which women are available and how costly they are as wives (their economic value). Sanderson observed that “[p]oorly educated women from rural areas and with low socioeconomic status are much more likely to be in a polygamous marriage, and well-educated women from higher socioeconomic backgrounds, who have many more marital options, shun polygamy.”²⁰ The author rejected the female choice theory and noted that it is mostly high-status men in polygamous societies who have multiple wives, as they have “the means to acquire them and the personality traits (e.g., competitiveness, aggressiveness) that incline them toward the pursuit of several females. High status males mate more often and leave more offspring, a pattern that is found widely throughout mammalian species.”²¹

Sanderson embraced this socio-biological understanding of polygamy and supported Alexander's male compromise theory,²² which relies on the idea of reproductive opportunity levelling. Sanderson, drawing on empirical data to support Alexander's theory, wrote: “Male competition for wives produces conflict, and societies that recruit large numbers of young men in order to conduct wars with other societies must find a way to minimize this sort of conflict…[which] can be accomplished by legally prohibiting polygamy, thus giving all males equal access to wives” (Sanderson 2001: 332). According to Alexander, this socially imposed monogamy is a by-product of the large nation state. Sanderson drew on empirical data to support Alexander's theory.

[Forty-six percent] of larger states have socially imposed monogamy, compared to 26% of smaller states, 10% of chiefdoms, and 11% of bands and tribes. In the full Ethnographic Atlas (1,267 societies rather than 186), 46% of larger states have monogamy and another 39% have only occasional polygamy (Murdock and White 1969).

Michael Price's hypothesis that monogamy supports co-operation and, as a result, has spread from the West to other regions was tested by using five measures of societal success against 156 contemporary nation-states, of which 84 are monogamous and 72 are polygamous. Among other conclusions, “Price found that 64% of monogamous societies but only 25% of polygamous societies had liberal democracies.”²³ But not all monogamy is politically imposed, as evinced by its existence among small-scale band and tribal societies. “Ecologically imposed monogamy” arises when men lack the resources needed to support multiple wives (Sanderson 2001: 333).

Bretschneider (1995) suggested that polygamy is a multi-dimensional phenomenon. He argued that it is not possible to isolate socio-cultural, economic, demographic or environmental conditions as singular causes. Rather, access and control over resources, as well as the mobility of women across borders, are significant influences.

The research is not conclusive on the impact on children of growing up in polygamous families. In 2002, researchers conducted a review of all quantitative and qualitative studies that had been done on the effect of polygamy on children's outcomes (Elbedour et al. 2002). They found that children of actually polygamous marriages were at greater risk of experiencing marital conflict, family violence and family disruptions, marital distress, particularly that related to high levels of unhappiness of women in polygamous unions, absence of the father and financial stress. However, some of the studies reviewed found that children, particularly older children in a family, demonstrated resilience in dealing with these risk factors. The researchers concluded that cultural factors play a role in determining the extent to which the risk factors associated with polygamy negatively affect children. The researchers suggested that a culture in which polygamy is not only tolerated but valued, where the larger family size associated with polygamy is a signifier of social status, and where women are respected for their role in producing children, may help children deal better with the risk factors associated with polygamy.

Polygamy has long been associated with gender inequality by Western commentators,²⁴ and this remains the case. In particular, the United Nations has consistently taken the position that polygamy contravenes women's equality rights. The U.N. Committee on the Elimination of Discrimination against Women, which monitors compliance of states parties to the Convention, issued a general recommendation in 1992 that included the following.

Polygamous 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. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5(a) of the Convention.²⁵

Social scientists who have closely studied the condition of women in societies that practise polygamy support the conclusions of the United Nations. In one study of and by Sudanese women, the researchers concluded:

Women do not like polygamy but cannot do anything about it. Divorce is the de facto right of men in the Sudan, whatever the behaviour of the husband. Only one of the respondents tried to gain a divorce from her husband and she could not make the legal system work in her favour and so gave up. Men can and do divorce women when they want too, although this was comparatively rare among our interviewees. The fact that men can take another wife or divorce their existing wife is a source of insecurity and anxiety for women and helps to ensure their adherence to conservative social norms in areas like reproduction, circumcision, work, etc. (Mukhopadhyay et al. 2001: 4).

Social scientists studying various societies often reiterate that the practice of polygyny leads to women being oppressed, threatened or disempowered.²⁶

The decline in polygamy has been related to changing social conditions, the increase in democracy, the decline in arranged marriages, the increase in companionate marriage²⁷ and the improvement in the education of and human rights protections for women. Polygamy may offer short-term benefits to women in societies where women have generally low education levels and few economic opportunities and where their status is linked to marriage and childbirth. However, the consensus is that polygyny can flourish only in the context of gender inequality. This is not to say that all women experience polygyny as exploitative or undesirable,²⁸ only that the practice is connected with gender inequality by organizations such as the United Nations and most social scientists.