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POLYGAMY,
BIGAMY AND
HUMAN
RIGHTS LAW




6085-CHAP
POLYGAMY,
BIGAMY AND
HUMAN
RIGHTS LAW


Samuel Chapman

6085-CHAP
Copyright © 2001 by Samuel Chapman.


ISBN #: Softcover 1-4010-1244-2

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CONTENTS
Chapter 1“Introduction ................................................ 9
Chapter 2”Review of the Literature on
Plural Marriage ...................................................... 13
Chapter 3“The Criminal Law“Bigamy and
Related Offences .................................................... 23
Chapter 4“The Civil law and Plural Marriage ............. 41
Chapter 5“Comparison of Reasoning and
Identification of Assumptions ................................. 55
Chapter 6“Testing assumptions against
Research and Data ................................................. 61
Chapter 7“Plural Marriage and Human Rights ........... 71
Chapter 8“Opportunities for Change in the Law ......... 83
Chapter 9“Conclusion ................................................ 95
Recommended further reading .................................... 99




6085-CHAP
To A.A.S. Zuckerman, Fellow in Law at University College,
Oxford, who first taught me that the law was whatever I could
successfully argue it to be.




6085-CHAP
CHAPTER 1“INTRODUCTION
In the latter half of the twentieth century a variety of laws which
were associated with traditional views of morality and family life
were repealed or amended, such as those regulating abortion,
homosexual acts and divorce. Bigamy, however, remains a criminal
offence, and its practice or the avoidance of the offence have various
implications under other branches of law.
This becomes an issue due to the large increase in the Muslim
population in the United Kingdom which has taken place over a
similar period of time, and the fact that under Islamic law it is
permissible for a man to have up to four wives. While this has been
happening, a change in attitudes to personal morality has appar-
ently resulted in a move away from strict monogamy within the
population as a whole, so that the assumption of monogamous
marriage becomes open to question.
At the beginning of a new millennium however, it is possible
that the law may now be challenged. Medi Siadatan, a Walsall
restaurateur, wants the law to guarantee multiple wives the same
rights as any other spouse, and the Muslim Parliament of Great
Britain is considering a challenge to the law. With the
incorporation of the European Convention of Human Rights
into domestic law for the first time, it is clear that both individual
polygamists and at least one prominent Muslim organisation intend
to seek legal recognition for the relationships in which they are
living, or which they believe their communities should be able to
contract.
Against this background, chapter two presents a review of the
available literature on plural marriage and the law, focussing on
the commentary on English law, but also including information



6085-CHAP
10 SAMUEL CHAPMAN


from other fields that have not usually been considered by the
law.
Chapter 3 gives details of the history of the English Criminal
law of bigamy and some related offences. This begins with the use
of similar offences within the Roman Empire, through controversies
during the reformation which challenge the assumption that
monogamy is of Christian origin, and on to the modern application
of the law.
The law of England and Wales is of international interest in
this regard, because of its similarity to the law of Northern Ire-
land, and its persuasive force in Scotland, the Republic of Ireland
and across the Commonwealth. The English law on bigamy has
also been cited in leading cases in the United States and before the
European Court of Human Rights, further establishing the rel-
evance of considering the current state of the law at a time when
prosecutions of polygamists have revived in Utah.
Chapter 4 traces the development of the civil law relating
to plural marriage, and specifically the move towards greater
recognition.
Chapter 5 compares the reasoning behind the different areas
of the law and identifies the assumptions that lie behind them,
which are then tested in chapter 6 against research and argument
from a number of disciplines and against demographic informa-
tion. This reveals the assumptions and reasoning to be largely open
to question, and in need of debate.
Chapter 7 identifies relevant sections of the European
Convention on Human Rights that will need to be applied by the
English Courts, and the likely issues to be raised in the context of
polygamy are highlighted in chapter 8. The study concludes that
the law has not developed in a logically coherent way, but that the
law has contributed towards stifling interest in debating the subject.
The Human Rights Act therefore presents both a stimulus for
comprehensive debate and a considerable challenge to the existing
law. Some opportunities that the Act presents for reform are
identified, should anyone wish to take them forward to the courts.
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 11


Finally, it is worth noting that some commentators treat
bigamy as the practice of having two wives, and polygamy as the
practice of having more than two wives, but this reflects neither
the common usage nor the dictionary definition.
The term ˜polygamy™ is used in this book to refer to the practice
of one man having more than one wife at the same time, otherwise
known as ˜polygyny™. This is how the term is used by most writers
as this is by far the most prevalent form of plural marriage, but
technically the term can also cover ˜polyandry™, the practice whereby
a woman has more than one husband. In this text, polyandry will
be referred to separately from polygamy.
In this book a “potentially-polygamous” marriage is a mar-
riage involving two parties only, but which was celebrated under a
law which allows polygamy.
The term ˜bigamy™ will be used in reference to the criminal
offence.




6085-CHAP
CHAPTER 2”REVIEW OF THE
LITERATURE ON PLURAL
MARRIAGE
The literature surrounding the topic of plural marriage is very
diverse. Much literature is concerned with moral or religious is-
sues, while other works relate historical, sociological and economic
analysis, and others refer directly to legal issues. A great deal of the
literature refers to cultures and legal systems beyond the United
Kingdom, which is useful for comparative purposes.
This chapter will consider the various kinds of literature which
are available, and examine how they relate to the situation in
England and Wales. Case law will be considered in later chapters.
The major works referring to polygamy from the perspective
of English Law are the two reports of the Law Commission, in
1971 and 1985. The first examined the previous practice of En-
glish courts refusing to grant matrimonial relief to those involved
in polygamous or potentially-polygamous marriages, and recom-
mended the abolition of that rule, which duly followed in the
Matrimonial Proceedings (Polygamous Marriages) Act 1972. The
report argued that parties to a polygamous marriage should be
encouraged to conform to English standards of behaviour by hav-
ing, as far as possible, the same rights and duties as other married
people in England but, as Sebastian Poulter pointed out in 1986,
could easily be seen as permitting greater diversity by increasing
legal recognition of “an alien custom”.
The report limited its consideration to the recognition of
polygamous marriages for the purposes of family law and social



6085-CHAP
14 SAMUEL CHAPMAN


security legislation, and did not deal with other important areas of
the law, including the crime of bigamy.
The second Law Commission report considered the need for
reform and certainty with respect to the recognition of potentially-
polygamous foreign marriages, and recommended that such
marriages should be recognised by the civil law as if they were
monogamous. This corrected a curious decision of the Court of
Appeal which had meant that a marriage, celebrated in a
jurisdiction which allowed for polygamy between a man with an
English domicile and a woman with the foreign domicile, would
be treated differently than a similar marriage where the man had
the foreign domicile and the woman had the English domicile.
The report did not make any recommendation concerning the
recognition of actually polygamous marriages and, as with the earlier
report, had a very limited remit that did not include the criminal
law.
The recommendations of this second report led to the Private
International Law (Miscellaneous Provisions) Act of 1995.
Much of the rest of the literature on English law is, to some
extent at least, dated by the adoption of the Law Commission
recommendations, which tend to cover the same areas of discussion,
but which occasionally venture into other territory.
The best of these is Poulter who, in one article in 1976,
considered the original reasons given for not recognising potentially-
polygamous marriages, elsewhere attempted to formulate a general
theory for the recognition of such ethnic minority customs and, in
another place, considered the development of the law, policy
considerations, the many types and varieties of legal recognition
given to actual or potentially polygamous marriages, and the scope
for reform. This includes some brief consideration of the crime of
bigamy, human rights issues and how they interact with issues
related to sexual discrimination. The conclusions worthy of note
are that polygamy does not restrict Muslim religious practice as
Islam does not require polygamy, but merely permits it; that, where
religion requires polygamy, courts have held that bigamy laws do
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 15


not unnecessarily interfere with religious rights, and that the
European Convention requirements concerning gender equality
in marriage would present difficulties for polygamy that tends to
provide different remarriage rights for men and women.
G Bartholomew considers bigamy in some detail (in “Polyga-
mous Marriages and English Criminal Law”; (1954) 17 MLR 344)
but his arguments largely rest on the assumption of the continued
existence of “common law marriage”, which is supported by some
more recent authors, such as Hall (in “Common Law Marriage”;
(1987) 46(1) Cambridge Law Journal 106) and Lucas (in his
“Common Law Marriage”; (1990) 49(1) Cambridge Law Journal
117), but was explicitly denied by the Law Commission (on page
7 of their 1971 report). He suggests that any form of marriage
involving a declaration of consent would be recognised in English
Law, and that this would include informal Islamic marriages, but
there is no case law to show this, and what there is tends to point
in the opposite direction, not recognising such marriages for of-
fences relating to solemnisation. His assertion that a potentially-
polygamous marriage would be a good first marriage for a prosecu-
tion for bigamy has also not been accepted in later decisions of the
courts.
R D Leslie (in his “Polygamous Marriages and Bigamy”; (1972)
17 Juridicial Review 113) makes similar suggestions for reinter-
preting the law of bigamy, to avoid the anomaly of a polygamous
man being held civilly, but not criminally, bigamous but the case
of R v Sagoo shows that the law persists in maintaining this anomaly.
C G J Morse identifies 5 reasons from literature, rather than
case law or statute, justifying the criminal prohibition of bigamy,
and finds it frustrating that the courts have not allowed these rea-
sons to affect their decisions (see his “Polygamists and the Crime
of Bigamy”; (1976) 25 ICLQ 229). Neither he, nor the writers he
quotes (Williams, H L A Hart in his “Law, Liberty and Morality”
(1963) London: Oxford University Press; J A Andrews in his “A
Licence for Bigamy?” [1963] Crim. L.R. 261; and Polonsky in his
“Polygamous Marriage: A Bigamist™s Charter?”; [1971] Crim. L.R.



6085-CHAP
16 SAMUEL CHAPMAN


401, provide evidence that any of these reasons are used by courts
in their decisions, except for the argument that bigamy is “the
prostitution of a solemn ceremony”, which shall be examined later.
T C Hartley considers the policy basis of the law, concentrat-
ing on the Conflict of Laws, although elsewhere he comments
briefly on bigamy. (see his “Polygamy and Social Policy” (1969)
32 MLR 155 and his “The Policy Basis of the English Conflict of
Laws of Marriage.” (1972) 35 MLR 571)
Glanville Williams gives a brief, but powerful, critique of the
offence of bigamy and in particular of its uncertain application to
British subjects abroad, and the opportunities that one of its de-
fences provides to the determined serial bigamist, suggesting how
it could be replaced.
Keith Soothill and others question the Home Office classifica-
tion of bigamy as a sexual offence, in finding no relation between
the criminal careers of bigamists and sex offenders, and increas-
ingly lenient treatment by the courts and police, but seeing closer
binds with those of crimes of deception. (see Soothill K, Ackerley
E, Sanderson B & Peelo M, “The place of bigamy in the pantheon
of crime?” Med. Sci. Law (1999) 39 (1) 65)
David Pearl lists some reasons why changes to legislation on
the Indian sub-continent may mean there are less cases concern-
ing polygamy in the future, and seeks to provide legal practitio-
ners with guidance across family and immigration law, and with
regard to legitimacy and tax issues, but completely ignores
bigamy (even in describing cases where the English offence is
made out)
Hence, the literature surrounding English Law of plural mar-
riage tends to split into two types. That which considers the civil
law is fairly continuous, but much of the recommendations within
it have been accepted, and there is little to show the current state
of the law, or further developments. That which considers the
criminal law of bigamy, tends to relate to only a few cases, and
ventures suggestions for why the law is the way it is, or for how it
should be, but the literature does not tend to support the reasons
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 17


for the crime being in place with evidence of these reasons being
used in judicial decisions.
Furthermore, most of the literature was generated long before
human rights issues have gained their current prominence, and
with no view of incorporation of the European Convention on
Human Rights. Hence the literature is largely silent on human
rights issues, and where they are mentioned they are normally
passing references which are not fully developed or tested, and
tend only to refer to the rights of religions that allow but do not
require polygamy.
The relevant English academic literature on this part of Islamic
law is not as extensive. Pearl covers the nature of laws in Islamic
countries, and in particular those with a history of providing
immigrants to the United Kingdom. We see that countries on the
Indian sub-continent have restricted the availability of polygamy
to their citizens, and that this may have a corresponding effect on
the numbers of likely cases in England involving nationals of those
countries.
Jamal Badawi, in his American Trust Publications “Polygamy
in Islamic Law” argues from an Islamic perspective that polygamy
is not immoral per se, owing to its presence in Jewish and Christian
scriptures, and that the Qur™an permits polygamy in order to show
compassion to widows and orphans, with the restrictions that a
man may not have more than four wives and that he must deal
justly with them. Badawi appears decidedly lukewarm about
polygamy, aiming to prevent it tainting the Islamic faith, and
describing it as the lesser of two evils, but it is clear that where it is
the lesser of those evils it may be regarded as necessary, and that
societies which profess monogamy are perceived by Muslims as
having greater social problems of infidelity and family
breakdown.
The other main source of legal writing on the subject of po-
lygamy is generated by the experience of the Mormons in the
United States, and the response of the courts to their religious
faith and practices.



6085-CHAP
18 SAMUEL CHAPMAN


Bud Ryerson (in “Religious Freedom, Polygamy and the Law”,
available online) and Elizabeth Harmer-Dionne (in “Once a
peculiar people: Cognitive dissonance and the suppression of
Mormon polygamy as a case study negating the belief-action
distinction.” (1998) 50 Stanford Law Review 1193) outline and
criticise the reasoning of the US Supreme Court for upholding
laws that proscribed bigamy in direct conflict with Mormon
religious belief of the time, which linked the practice of polygamy
to the individual Mormon™s salvation in the afterlife, effectively
commanding it. It is worth noting that US laws on bigamy are, in
some senses, more extensive in their scope than the English
counterpart. At the time of the major cases, and still in some states
today, the law defines cohabitation as marriage for the purposes of
bigamy laws. Therefore, the legal reasoning in American cases is
concerned with the prohibition of the practice of polygamy, and
not just the public recognition of it. The cases are of interest to
English Law in that the reasoning depends on considering freedom
of religion and the extent to which the state can infringe upon it.
In considering this, whether it is possible to distinguish between
beliefs and actions, and the concept of what is necessary in a
democratic society, the cases provide a few precedents which can
assist our understanding of Convention points.
David Chambers considers the parallels between federal inter-
ference in state law to regulate polygamy and its more recent ac-
tions to prevent the recognition of same-sex marriage, making some
helpful analytical points about modern debates as he does so. (see
his “Polygamy and Same Sex Marriage”; Hofstra Law Review, 26(1)
available online).
David Troy Cox uses recent US law to show how the law can
act as a mediator between conflicting groups, which can be a help-
ful way of considering certain arguments related to freedom of
expression and the possible legal development of Convention points
related to polygamy. (see his “The Law as a Mediator of Identity
Conflicts”; unpublished; available online)
There are a variety of perspectives represented in the writing
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 19


about plural marriage and which can be of assistance in considering
the treatment of the subject in English law.
B. Carmon Hardy (in “Solemn Covenant: The Mormon Po-
lygamous Passage” (1992) Chicago: University of Illinois Press),
Richard Van Wagoner (in his “Mormon Polygamy, A History”
(1989)Utah: Signature Books) and Martha Bradley (in “Kidnapped
from that Land: The Government Raids on the Short Creek Po-
lygamists” (1993) Salt Lake City: University of Utah Press) be-
tween them give an extensive account of the experience of Mor-
mons and the consequences of their belief in polygamy from the
critical periods of the 19th Century almost to the present day.
This helpfully documents the impact of anti-polygamy legislation
on a large group of people over a prolonged period of time, and
helps to establish reasons and perspectives for understanding the
change in Mormon doctrine over this period. The largest Mormon
denominations now no longer require the practice of polygamy for
salvation, and have effectively minimised the doctrine™s involve-
ment in their religious lives, but Fundamentalist groups continue
to practice polygamy. This is largely ignored by the authorities,
but occasionally leads to prosecutions.
Other writers concentrate on the sociological and
anthropological study of polygamy. This includes Peter
Bretschneider™s analysis of 186 polygamous societies, whose
statistical evidence as to societal conditions associated with
polygamy is useful for consideration of the links between polygamy
and social structures in a democratic society (see his “Polygyny: A
Cross-Cultural Study” (1995) Stockholm: Uppsala University
Press). Also of interest are Phillip Kilbride™s analysis of new family
types (in his “Plural Marriage for our times”A reinvented option”
(1994) Westport, Connecticut; Bergin & Garvey), and Audrey
Chapman™s suggestion that polygamous family types may be
particularly suited to modern societies (in her “Man-sharing:
Dilemma or Choice” (1986) New York; William Marrow and
Company). Irwin Altman and Joseph Ginat have produced a
longitudinal study of modern polygamous communities in a western



6085-CHAP
20 SAMUEL CHAPMAN


democratic context (“Polygamous Families in Contemporary
Society” (1996) Cambridge: Cambridge University Press), and Janet
Bennion (in “Women of Principle: Female Networking in
Contemporary Mormon Polygyny” (1998) Oxford: Oxford
University Press) has made a particular analysis of the effects of
modern polygamous practice on the women who are involved,
which is useful for considering points about whether women™s rights
would be compromised by allowing polygamy.
The effect on women is also considered by economists such as
Gary Becker, (in his “Treatise on the Family” (1981) Cambridge,
MA: Harvard University Press), who argues that polygamy is more
commonly found than polyandry because of the preference people
have towards raising their own children rather than someone else™s.
As the father of a child is not readily known when a mother has
several husbands, each husband effectively lowers the productivity
of the other husbands by increasing the uncertainty that subse-
quent children are theirs. This reduces the return on investment
from children and so polyandrous systems would not be expected
to be able to compete against polygynous systems. Thomas
Bergstrom (online in “On the Economics of Polygamy”, Univer-
sity of Michigan”) adds that extra husbands do not significantly
increase fertility rates for a woman, whereas extra wives do for a
man, and therefore there is a natural tendency which favours po-
lygyny over polyandry. They both are joined by David Friedman
in arguing that polygynous societies can be better for women than
for men, by raising the competition amongst men and increasing
the value of wives.
The position of women in polygamous society has also been
addressed from a historical perspective by John Cairncross, although
his analysis is limited to polygamous experiments in western
Christian societies. He judges that the women in the polygamist
societies he studied were at least no worse off than contemporaries
in other groups, but it must be acknowledged that there were very
few groups available for him to study. However he also gathered
together the writings of “polygamophile” Christian authors and
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 21


reckoned them to give women a higher status than their
counterparts.
Other historical comment leads into discussion of Christian
theology as Cairncross, Leo Miller (in his “John Milton among the
Polygamophiles” (1974) New York: Leowenthal Press) and Ursula
Vogel (in her “Political Philosophers and the trouble with
Polygamy”; The History of Political Thought Volume XII (2) 1991,
p229) all recount many instances of prominent Christian historical
figures who defended or advocated polygamy, especially during
the reformation. Suggestions of polygamy as a possible resolution
to Henry VIII™s difficulties were considered by both Protestants
and Catholics, and Phillip, Landgrave of Hesse in 1541, and James
1™s grandson Charles Louis in 1658, the Prince Elector of the
Rhenish Palatinate, both married second wives without divorcing
the first. Phillip™s marriage took place with the express approval of
reformers such as Luther and Melancthon. Vogel interprets
continuing European debates about polygamy as a “struggle for
dominium over the province of knowledge” whereby there is a
continual attempt “to free the terrain of moral and political
philosophy from the jurisdiction of religious doctrine” (see her
“Political Philosophers and the trouble with Polygamy”; The History
of Political Thought Volume XII (2) 1991, p229). This echoes
earlier suggestions that bigamy became a crime in England in a
struggle between the church and the state.
The final batch of writers to be considered cast doubt on the
supposition that the church should be anti-polygamy. The English
poet and statesman John Milton, who was born just after bigamy
was made a crime, was a dedicated proponent of polygamy, basing
his arguments entirely on Biblical sources. His De Doctrina
Christiana was dedicated to Cromwell but only published in 1825,
over 150 years after the author™s death. While this is clearly a
minority opinion, it is also an opinion which has had, and continues
to have, some currency wherever organisations take the name of
Christian, whether it be Catholics such as Eugene Hillman, African
Christians such as David Maillu, Mormon Fundamentalists such



6085-CHAP
22 SAMUEL CHAPMAN


as Ogden Kraut, Methodists like Westley Hall and Martin Madan,
or evangelical Protestants like S. John Butt. (see Hillman E,
Polygamy Reconsidered”African Plural Marriage and the Christian
Churches (1975) New York: Orbis; Maillu D G, Our Kind of
Polygamy (1988) Nairobi: Heinemann Kenya; Kraut O, Polygamy
in the Bible (1983) Utah; Pioneer Press; Butt S J, “Inside Christian
Polygamy and the Patriarchal Christian Movement”)
In conclusion, it is clear that the literature on plural marriage
is very diverse, and little attempt has been made to draw it all
together into a coherent whole. The literature that directly refers
to the law is largely out of date in the case of civil law, and of
questionable relevance in the case of criminal law. Also there is
sufficient legal precedent outside the UK to compare with British
thought, and sufficient argument or research in many different
spheres of knowledge which can illumine the assumptions made
by the law and provide further food for judicial or academic
thought. While a completely comprehensive integration of these
many parts is outside the scope of a work of this size, it does present
an opportunity to begin the process of relating the various pieces
together, and fitting them to the modern world.
CHAPTER 3“THE CRIMINAL
LAW“BIGAMY AND RELATED
OFFENCES
The roots of bigamy laws extend deep into the past, and are as
much entwined with established religious organisations as they
are with social or democratic concerns. As a nation that professed
Christianity until relatively recently, English law has felt the im-
pact of the Bible and various theologians in a variety of ways. Po-
lygamy is recorded in the Bible as a practice of the patriarchs and
Kings, and the text speaks of the relationship between God and
Israel, and later between Christ and the Church, in polygamous
terms. Polygamy itself escapes any form of scriptural condemna-
tion and appears instead to attract support. After the Bible was
completed, as one church or another became established as rival
sources of authority and law, and as the Roman Church itself mar-
ried the Empire, condemnations of polygamous behaviour began
to become more common.
The Lex Antonia De Civivate of 212 AD required monogamy
for all citizens of the Roman Empire except Jews. According to
Kofon, in 258 AD Valerian and Gallienus made a law forbidding
second marriages when the first partners were still alive, and in
285 AD Diocletian and Maximian abolished polygamy in the
whole of the Roman Empire without exception. As the Jews, who
at that point still practised polygamy, largely ignored this, in 393 AD
Theodosius issued another law in an attempt to make them change
their ways, apparently without success, as Jewish groups were still
practicing polygamy within the Empire into the 11th Century.



6085-CHAP
24 SAMUEL CHAPMAN


Part of the reason for this lack of success may be the contribu-
tion of the Emperor Valentinian who, according to the Roman
writer Socrates Scholasticus, took a second wife and decreed a law
legitimising the practice around 400 AD.
Milton™s History of Britain records a number of early British
polygamous kings and, in 597 AD, Augustine, a missionary to
Britain, enquired of Pope Gregory I as to what he should do about
the polygamous Britons. He was told that perhaps toleration would
be better than condemnation. Pope Gregory II gave similar advice
to Boniface in 726 about polygamous Germans, and in 757, ac-
cording to Hitchens, the Church Council of Compiegne allowed a
leprous spouse to permit their partner to marry again. (see Hitchens
R J, Multiple Marriage: A Study of Polygamy in the Light of the
Bible (1987) Maryland: Doulos Publishers)
In 1201 Pope Innocent III, in answering a practical question
from the Bishop of Tiberias, refused baptism to polygamists who
had converted, and later that century Thomas Aquinas saw
continued polygamy among such converts as continual sin which
prevented them from receiving the sacraments, although this was
tempered by his view that polygamy only breached secondary
precepts which did not apply always and everywhere.
However, the situation became far more varied and intriguing
with the onset of the Reformation, which was of particular relevance
to England as Henry VIII™s repeated failure to produce a male heir
gave him a particular interest in Christian teaching on marriage
that differed from the official Roman position. It appears that both
sides of the Reformation entertained positive attitudes to polygamy
and discussed them in relation to the King™s case in the late 1520™s.
On the Roman Catholic side, one of Henry™s envoys reported that
a “great theologian”, thought to be Cardinal Cajetan, had advised
Pope Clement VII that a dispensation for polygamy could resolve
the situation. On the Protestant side, both Melancthon and Martin
Luther advised that polygamy was permissible for the King, but
the latter wished to avoid a wider application of the principle to
prevent scandal. Cairncross views the reformers here as concerned
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 25


more with political considerations, preferring a polygamous King
to a divided kingdom, and not concerning themselves with what
would happen if polygamy were more widely practised.
The reformers had plenty of opportunity to consider the
lawfulness of polygamy as in 1526, Philip, the Landgrave of Hesse
sought their permission to enter a second marriage, and they advised
that it was not a good idea.
Meanwhile, a group of Anabaptists gained control of Munster
in 1534 and, under the leadership of John of Leyden, established
a government which treated polygamy as the ideal form of marriage.
The reaction of their neighbours was intense and extreme, for within
a year they had achieved what ecumenism so far has not, in uniting
Catholics with Lutherans, albeit only to invade the city, kill much
of its population and torture and execute its leadership.
In 1532 the Emperor Charles banned bigamy (again) within
the Empire, making it a capital offence, and in 1537 Pope Paul III
ruled (in Altitudo Divini Consilii) that converted polygamists who
could not remember which wife they had married first should
choose one, marry her in Church and send the rest away. This
appears to be another concession to practical considerations over
doctrine, as it seems strange that a man could forget which of his
wives he had married first.
The Reformers advice and these other developments were in-
sufficient to prevent Philip of Hesse raising the issue again in 1539,
this time securing the written permission of Luther, Melancthon
and Bucer, and the attendance of these last two at the resulting
wedding in 1540. But the Reformers insisted that the marriage
remain secret, and when it became public knowledge they backed
away from their previous support. The events that had taken place
since their advice to Henry had given them concern as to what
would happen if polygamy was extended beyond princes and was
practised by the general population. This lukewarm and evasive
stance caused Philip to show a similar attitude in his support for
the political advancement of Protestantism, which did not run
smoothly after this.



6085-CHAP
26 SAMUEL CHAPMAN


In 1563 the Council of Trent reclarified the Catholic position
by declaring anyone who held polygamy to be lawful to be anath-
ema, and in the same year a former Franciscan, Bernardo Ochino,
published a book in Zurich which argued for the moral legitimacy
of polygamy.
In 1567 Jan Willemsen established a polygamous community
in Westphalia which later ended when he was caught and burned
to death in 1580.
In 1571 Pope Pius V ruled (in Romani Pontificus) that converted
polygynous Indians should stay with the wife with whom they
were baptised in to the Church, irrespective of whether she was
the first, and in 1585 Pope Gregory XIII ruled (in Populis ac
nationibus) that converted slaves could remarry if their former
partners were no longer available
Bigamy has been a criminal offence in England and Wales
since 1604, when the first Parliament of James 1 took action to
restrain the “divers evil disposed persons” who were bigamously
marrying “to the greate dishonour of God and utter undoinge of
divers honest mens children and others”, by ensuring that
anyone found guilty would receive a sentence of death. This
was not a complete innovation, having previously been a matter
for the ecclesiastical courts, but now taken over by the criminal
courts.
It is clear however that the issue of polygamy had been aired
many times in the century preceding this enactment, and it is
therefore notable for two reasons. Firstly, that the law should rep-
resent some degree of resolution of the question, with England
enshrining bigamy as a crime, and secondly that it actually avoided
the issues rather than addressing them. The law was a fudge which
portrayed the sort of behaviour that it was outlawing as that of
people who were wandering the country and forming unions which
secretly were bigamous, rather than the open polygamy which
had been taking place across Europe and which had been pre-
sented as an option to Henry VIII. It is unsurprising then that
later courts would interpret it solely with reference to bigamy as a
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 27


type of crime of deception, and would claim that it simply does
not address the practice of polygamy.
Before we move on, there are two other matters of note with
regard to the timing of the Act of 1604. Firstly, it was an enact-
ment of James I, whose name has ever since been linked with the
King James Version, a translation of the Bible made in 1611 and
authorised to be read in Churches. Like any translation of the
Bible it finds it impossible to conceal the polygamy of the patri-
archs, but some of the polygamous references in the New Testa-
ment are rendered with sufficient ambiguity to let the reader pass
on without noticing their polygamous content.
Secondly, it is clear that the Act of 1604, whatever its effect
against bigamy-by-deceit, did not cease the discussion about the
practice of polygamy which, if anything, intensified in England
during the 17th Century. The concept drew support from Sir Walter
Raleigh and Sir Thomas Browne in England as well as the jurists
Hugo Grotius and Samuel Pufendorf elsewhere. John Donne, one
of James 1st favourites, and two other poets, John Milton and
John Dryden, wrote favourably of polygamy and James I™s own
grandson, Charles Louis, Elector of the Rhenish Palitinate, married
a second wife without apparently divorcing the first, and at least
sponsored, and possibly wrote, a defence of polygamy himself.
In 1671, after the Restoration, Charles II was reputed to have
gone through a bigamous ceremony with one of his mistresses, the
then Duchess of Portsmouth, and Leo Miller has shown that in
1675 a Michael Mallet MP introduced a Bill in the House of
Commons to repeal the Act of 1604 (see his “John Milton among
the Polygamophiles” (1974) New York: Leowenthal Press). Fur-
thermore, Jonathan Swift was one of many to allege that William
Cowper, first Lord Chancellor of the United Kingdom, was a biga-
mist and had written in defence of polygamy, and it is clear that
Bishop Burnet had also written such a work to keep open the way
for Charles II legitimately to provide a Protestant heir to the throne.
The Act of 1604 was eventually repealed, but only as one of a
number of consolidations and amendments in 1828, where the



6085-CHAP
28 SAMUEL CHAPMAN


offence itself was retained and reworded, the maximum sentence
being reduced to being “transported beyond the Seas for the Term
of Seven years”. In 1861, the familiar law of today was passed as a
further consolidation, repealing and restating the Act of 1828 but
this time reducing the maximum sentence to penal servitude of
not less than three years and not more than seven, which has since
become a maximum term of imprisonment of seven years.
Its essential elements are that it is committed by “whosoever,
being married, shall marry any other person during the life of the
former husband or wife, whether the second marriage shall have
taken place in England or Ireland or elsewhere,” subject to the
provisions that nothing in the section extends to second marriages
outside England or Ireland by “any other than a subject of Her
Majesty, or to any person marrying a second time whose husband
or wife shall have been continually absent from such person for the
space of seven years then last past, and shall not have been known
by such person to be living within that time,” or shall extend to
any person who, at the time of the second marriage, had the first
marriage divorced or declared void “by the sentence of any court of
competent jurisdiction”.
The drafting of the legislation has in many ways not signifi-
cantly changed since 1604, and this may in part be the reason
why there are a number of interpretative difficulties. As interpre-
tation of legislation is a key point of the Human Rights Act 1998
it is necessary to examine these.
The first is a simple point of the actus reus. It concerns “whoso-
ever, being married, shall marry any other person”, but in English
law it is not possible to marry another person if you are already
married, because the second marriage is void. It has been decided
by the courts that, at the opening of the section, the legislation
uses the term “married” in two different senses. The first refers to a
valid subsisting marriage, and the second refers to the act of going
through a marriage ceremony. (See R v King [1964] 1 QB 285, 48
Cr App Rep 17, CCA)
But what counts as a valid subsisting marriage? Obviously the
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 29


defences concerning a void marriage, or a divorce, count such
marriages out of the definition of “being married”, but the courts
have also held that a continuing potentially-polygamous marriage
is not a marriage for the purposes of this definition. In R v Sarwan
Singh [1962] 3 All ER 612, the West Bromwich Quarter Sessions
ruled that a man who had brought his wife from abroad and had
gone through a second ceremony with another woman was not
guilty of bigamy because his first marriage was potentially-
polygamous and to “be married” meant you had to be married
monogamously. This caused distress to writers such as Morse in
his “Polygamists and the Crime of Bigamy”; (1976) 25 ICLQ 229;
J Andrews in his “A Licence for Bigamy?” [1963] Crim. L.R. 261;
and Polonsky, who thought it a bigamists™ charter in [1971] Crim.
L.R. 401, allowing men who were first married under a system
which allowed polygamy to “marry” in the English system as many
times as they liked with impunity. The decision was however largely
upheld in R v Sagoo [1975] QB 885, [1975] 2 All ER 926, CA
where the Court of Appeal held, on similar facts, that the reasoning
was correct but that it neglected to include that a potentially-
polygamous marriage could, by change of law and domicile, become
monogamous, and therefore good as a first marriage from the point
of view of the bigamy legislation. This leaves open the possibility
that where a domicile had not changed, or where the law of the
originating country had not changed, or where the marriage was
in fact polygamous, that the marriage would not convert to being
monogamous and no bigamy charge could stand. And crucially, it
can make guilt dependent on the difficult question of whether the
defendant has changed his domicile, which is something he may
not know until the court tells him that he has.
It is also necessary to consider what counts as a marriage cer-
emony for the second marriage. In R v Robinson [1938] 1 All ER
301, 26 Cr App Rep 129 a couple contracted a marriage in Scot-
land, having been over the border for less than the 21 days needed
to make the marriage valid. The man pleaded that this, his second
marriage, was invalid and therefore that, as no valid marriage could



6085-CHAP
30 SAMUEL CHAPMAN


have resulted, he should be acquitted. However this did not im-
press the Court of Appeal, who found that the offence consisted of
going through the ceremony of marriage, and not its validity, fol-
lowing Denman CJ in R v Brawn (1843) 1 Car & Kir 144 who
said “It is the appearing to contract a second marriage, and the
going through the ceremony, which constitutes the crime of bigamy,
otherwise it could never exist in the ordinary cases; as a previous
marriage always renders null and void a marriage that is celebrated
afterward by either of the parties during the lifetime of the other.”
So it is clear that technical defects in the second marriage do not
constitute a valid defence.
There are a number of cases on either side of this argument,
but perhaps the most revealing for the purposes of this study is
that of R v Allen (1872) L.R. 1 C.C.R. where Cockburn CJ, in
overruling cases where it had been held that invalid marriages did
not qualify as second marriages for bigamy, spoke of the legislation
in terms of the “mischief it is intended to prevent.” He went into
some detail saying that the court “cannot agree¦that the purpose
of the statutes against bigamy was simply to make polygamous
marriages penal” as “Polygamy, in the sense of having two wives or
two husbands, at one and the same time, for the purpose of
cohabitation, is a thing altogether foreign to our ideas, and which
may be said to be practically unknown; while bigamy, in the
modern acceptation of the term, namely that of a second marriage
consequent on abandonment of the first while the latter still subsists,
is unfortunately of too frequent occurrence. It takes place, as we all
know, more frequently where one of the married parties has deserted
the other; sometimes where both have voluntarily separated. It is
always resorted to by one of the parties in fraud of the law;
sometimes by both, in order to give the colour and pretence of
marriage where the reality does not exist. Too often it is resorted to
for the purpose of villainous fraud. The ground on which such a
marriage is very properly made penal; is, that it involves an outrage
on public decency and morals, and creates a public scandal by the
prostitution of a solemn ceremony, which the law allows to be
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 31


applied only to a legitimate union, to a marriage at best but
colourable and fictitious, and which may be made, and too often
is made, the means of the most cruel and wicked deception.”
The judge later went on to say that as even otherwise invalid
marriages involved outrage, scandal and deception, they also were
covered by the statute.
But the practice of treating an invalid marriage as a marriage
because it is the ceremony that is important has caused confusion
for some judges. In R v Treanor (or McAvoy) [1939] 1 All ER 330,
160, LT 286, CCA, the Lord Chief Justice, delivering the verdict
of the Court of Criminal Appeal took “second marriage” as literally
as possible. Mr Treanor had gone through three marriages, the
first valid, the second after deserting the first wife for 12 years, and
the third after deserting his second (bigamous) wife for only 1
year. Treanor was convicted of bigamy only related to the last mar-
riage, and argued that he should have had the benefit of the de-
fence that he hadn™t seen his first wife in seven years and did not
know her to be alive. The court held that the statute allowed him
to rely on this defence for his second marriage, not his “second or
subsequent marriage”, and therefore upheld his conviction.
This appeared to confuse the second act of going through a
ceremony (marrying) with a valid first marriage (being married),
but in fact was treating literally the defence which is available “to
any person marrying a second time”, and ignoring the fact that
the bigamous marriage which is the subject of the indictment is
called “the second marriage” earlier in the section.
This was duly corrected in R v Taylor [1950] 2 KB 368, 34 Cr
App Rep 138 CCA where similar facts brought before the Court
of Criminal Appeal caused the court to give leave to appeal against
conviction even though such leave had not been sought. On similar
facts, Lord Goddard C. J. stated that from considering the Act of
1604, ˜It is clear from that section that what is aimed at there is
what I may call polygamy“not merely bigamy, a second marriage,
but any number of marriages, because the words are “shall marry
any person or persons”.™ This showed that the defence was intended



6085-CHAP
32 SAMUEL CHAPMAN


to be available no matter how many times the ceremony of marriage
had been gone through and helped to establish that in the Act of
1861 “second marriage” meant the same throughout the section,
and included subsequent marriages. Otherwise, once a man became
a bigamist, he could continue to marry without offending, because
his third marriage or fourth marriage would not be his “second
marriage”. For the court the “second marriage” was the second
marriage charged in the indictment. The Court did not mention
it, but it is clear that under the original law the case would be less
likely to arise. Given that a man found guilty of his first offence of
bigamy would have been executed, he would not tend to reoffend.
Another issue has been the geographical ambit of the offence.
It takes place when the second marriage is “in England or Ireland
or elsewhere”. In R v Earl Russell [1901] AC 446, HL the Earl
had obtained a divorce in Nevada which was not recognised in
English law, so when he remarried in America this led to a trial by
his peers in the House of Lords for bigamy. His counsel argued
that “elsewhere” meant elsewhere in Her Majesties dominions, as
some sections in the same 1861 act which were extraterritorial
explicitly said so, and did not simply use “elsewhere”, but the
House and the judges present did not believe there was an argu-
ment here that the Attorney-General need answer, and with that
Earl Russell pleaded guilty and was sentenced to three months
hard labour for his troubles. This decision has been regretted by
Williams who points out that it put in danger many of the Queen™s
citizens who practiced polygamy lawfully in the colonies. This
absurdity could only be resolved by the production of the doc-
trine in R v Sarwan Singh and R v Sagoo that a potentially or
actually polygamous marriage was not a good first marriage for an
indictment for bigamy.
Another point of interpretation suggests itself from the legis-
lation but has not come before the courts. The proviso that the
section does not extend to second marriages outside England or
Ireland “by any other than a subject of Her Majesty” may exclude
those marriages where a British subject marries a foreigner. This
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 33


would make it a crime to marry an Australian bigamously abroad,
but not a crime to so marry an American.
The final interpretative point is that regarding the mens rea, or
intent, required for the offence to be complete. In R v Tolson (1889)
23 QBD 168, CCR the Court decided that some form of mental
element was necessary to the crime and, notwithstanding that the
Act provided a defence after seven years absence, held that a bona
fide belief on reasonable grounds that her first husband had died,
gave the defendant a good defence even though she had remarried
within seven years of the supposed death. In R v Wheat and R v
Stocks [1921] 2 KB 119, [1921] All ER Rep 602 the Court of
Criminal Appeal held that a genuine but mistaken belief by the
accused that he had been divorced when he contracted the biga-
mous marriage was no defence to bigamy, and distinguished the
case by relating the mental element to the act of marrying “any
other person during the life of the former husband or wife”. As
someone who mistakenly believed they were divorced was clearly
intending to “marry any other person during the life of the former
husband or wife” they still had the requisite mens rea, whereas
someone who genuinely believed their spouse to be dead did not.
This in turn was found unacceptable by the Court of Appeal
in R v Gould, [1968] 2 QB 65, 52 Cr App Rep 152, CA who
found that while the words of the Act were absolute, mens rea was
required and could not be supplied by an “innocent mind”. The
Court found that, in as much as the proviso applied to divorce it
was not an exception at all, for a divorced man is not married and
therefore cannot be bigamous, and so its only value must be to
shed light on the absolute terms of the Act. The Court in R v
Wheat had completely misconstrued R v Tolson, and had substituted
a belief in the death of the first spouse for what the legislation said
about a lack of knowledge that they were alive. “An honest
defendant may freely admit that he believed his former spouse to
be alive at the time of the second marriage as long as he did not
know her to be so at any time within the previous seven years.”
The Court followed R v Tolson and accepted that an honest and



6085-CHAP
34 SAMUEL CHAPMAN


reasonable belief in a fact affecting the matrimonial status of the
defendant which, if true, would make his second marriage lawful
and innocent could constitute a defence.
The significance of this decision is not only that it accepts the
necessity for mens rea in the offence of bigamy but that it re-affirms R
v Tolson in so doing, and there is much in the judgments in Tolson to
help define the mens rea that the court found to be required.
R v Tolson was a case about a mistaken belief in the death of
the first husband, and was referred to a full court of 14 judges of
the Court of Criminal Appeal, who found by a majority of 9 to 5
that mens rea was required but absent in this case. There are four
speeches for the majority. Wills, J said that the guilty intent must
be either to do a thing prohibited by the statute or to do something
prohibited by no statute but that no-one would hesitate to call
wrong, and the examples he gives are fornication and seduction.
He also states that the severity of the possible punishment means
that “such a fate seemed properly reserved for those who have
transgressed morally as well as unintentionally done something
prohibited by law.” Cave, J said that the Act of 1604 predated the
presumption of a man™s death if he had not been heard of for seven
years, and that a person could believe their spouse to be alive and
still take advantage of the proviso, and so the proviso did not provide
the only defence. Stephen, J said that “It could not be the object
of parliament to treat the marriage of widows as an act to be if
possible prevented as presumably immoral. The conduct of the
women convicted was not in the smallest degree immoral, it was
perfectly natural and legitimate” and that “the legislature did not
mean to hamper what is not only intended, but naturally and
reasonably supposed by the parties, to be a valid and honourable
marriage, with a liability to seven years™ penal servitude”. Hawkins,
J said that, as a felony, it had to be done feloniously, “accompanied
by an evil intention” or “done with a mind bent on doing that
which is wrong”.
Interestingly, Manisty, J, a judge for the minority commented
on what he thought was one principle reason why the Act had
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 35


been passed which was “namely, the consequence of a married per-
son marrying again in the lifetime of his or her former wife or
husband, in which case it might and in many cases would be that
several children of the second marriage would be born and all would
be bastards.”
So it is clear then that the law of bigamy has not been the
easiest to interpret. “Whosoever being married shall marry any
other person” is taken to mean that “whoever, being married
monogamously shall go through a marriage ceremony”.
Whether a person who started with a potentially-polygamous
marriage is married monogamously is seen to depend on the laws
of the place where he married, and on his domicile, which the
court will decide for him.
Treating a “second marriage” as only the second in a series
would have allowed men to marry wives three and four with im-
punity, but when this was re-read as if to mean the “second mar-
riage on the indictment” it allowed the defence of the first seven
year absence to be applied to a series of bigamous marriages even
on the same day.
“Elsewhere” has been taken to mean anywhere in the world
for a British subject, so that a peer of the realm underwent three
months hard labour because the English courts would not recognise
his divorce, and yet it is unclear that a British subject would be
guilty if he married someone abroad who was not a British sub-
ject. And this appears to have led the courts to distinguish be-
tween polygamous and monogamous first marriages in order to
prevent the absurdity of British subjects being convicted in En-
gland for polygamous marriages which were legal in the colonies
in which they lived.
Finally, an Act written in absolute terms has been held to require
a mens rea which is relatively undefined, save that it includes
mistakes of fact as to death, divorce and invalidation of the first
marriage, although even this judgment was not followed by a later
Court of Appeal, whose judgment in turn had to be rejected by a
yet later Court. And the Court in R v Tolson seemed to imply that



6085-CHAP
36 SAMUEL CHAPMAN


the form of guilty mind needed to include some form of immoral
or evil intent in addition to the intent to breach the absolute terms
of the Act, and that a belief that the former spouse was alive would
not be enough for guilt due to the proviso for a seven year absence.
It is only recently that courts have taken to examining
parliamentary debates to ascertain the purposes of Parliament in
legislating, and as the law establishing bigamy is of considerable
antiquity, and the more modern statutes mainly re-enacted the
provisions of the earlier law, there is little hope of uncovering the
proceedings which give the real reasons.
The judges in R v Tolson could not agree on the weight to be
lent to the Act of 1604 in determining the meaning of its surviving
descendent, but the Court which upheld their decision in R v
Gould does reveal some evidence of how the Court of Appeal views
the Act. Diplock, LJ, when commenting on the proviso, said “in
1603, when the jurisdiction of the Ecclesiastical Courts was still
in the realm of political controversy and statutory draftsmanship
was in its infancy, it may well have been prudent to state expressly
what the consequences of the decrees of the Ecclesiastical Courts
should be as respects the newly created felony.” This supports the
view that the Act was part of a slow transfer of power from the
Church to the State or, more particularly, away from the Church,
echoed in James 1™s main achievement, of providing a Bible which
was widely available in the language of the masses and not just the
language of the churchmen. Indeed, according to Diplock, LJ,
even the provisions of the Act of 1861 were drawn in mind of a
recent transfer of matrimonial jurisdiction away from the
Ecclesiastical Courts.
One reason then for the bigamy statute is for the state to take
responsibility for areas previously entrusted to the Church. An-
other is that given above by Manisty, J, that legally unrecognised
marriages would increase the rate of illegitimacy. His fellow judges,
in discussing the mens rea allude to something beyond the words
of the statute, something involving a moral as well as a legal wrong,
similar to how fornication and seduction were viewed at the time,
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 37


which would have been less than a valid and honourable marriage.
They imply that the serious sentences which follow conviction
help to show the need for moral culpability.
Aside from this case there are few clues as to the reasoning
behind the prohibition of bigamy. There is the judgment of
Cockburn, C.J. that bigamy is not directed at polygamy so much
as the abandonment of subsisting marriages and the subsequent
“prostitution of a solemn ceremony” in order to give the pretense
of marriage where it does not exist, involving outrage, scandal and
deception, (in R v Allen (1872) LR 1 CCR 367 at 374) and the
highly favourable acceptance in R v King of the Australian High
Court decision of Thomas v The King (1937) 59 CLR 279 that “it
is only because of the wrong done by the wickedness of going
through a form of marriage with the knowledge of the impedi-
ment of a previous marriage that the subsequent marriage merits
punishment.”
And there is a case from another jurisdiction which can also
assist in our formulation of policy reasons for the law. The case of
Attorney-General of Ceylon v Reid [1965] A.C. 720 involved a man
who had married monogamously, separated from his wife, converted
to the Muslim faith and married a Muslim woman polygamously.
The Privy Council held that in a country of many races and creeds,
and with a number of marriage laws which allowed adherents of
different faiths to be governed by their personal law that a Christian
monogamous marriage could not prohibit for all time a change of
personal law and adoption of polygamy. Reid had an inherent
right to change his religion and contract a valid polygamous
marriage, if recognised by the laws of Ceylon, notwithstanding an
earlier subsisting monogamous marriage. This establishes both that
monogamous marriages can become polygamous, and that the
bigamy laws could not be applied to such future monogamous
marriages. Hence it seems reasonable to suggest that the laws against
bigamy, which covered Ceylon at the time, were not intended to
prevent those who had married monogamously from marrying
polygamously.



6085-CHAP
38 SAMUEL CHAPMAN


And then there is the Act of 1604 itself, which sought to re-
strain the “evil disposed persons beinge maried, runne out of one
Countie into another, or into places where they are not knowen,
and there become to be maried, havinge another husband or wife
livinge to the greate dishonour of God and utter undoinge of divers
honest mens children and others”, which links the offence to con-
cepts of evil, the exploitation of ignorance, abandonment of re-
sponsibilities, lack of respect for God, and its effects on other people,
presumably the victims.
While it may be difficult to establish much about the reasoning
behind the bigamy laws, it is possible to eliminate reasons by use
of the analysis of those laws conducted earlier in this chapter.
Bigamy is not illegal in order to prevent polygamy, as a biga-
mous marriage is not recognised by the law, and polygamous mar-
riages in the colonies have been allowed to be added to monoga-
mous marriages already contracted. Neither is it illegal in order to
limit what polygamy already exists, because such marriages do not
count as first marriages for bigamy prosecutions. It is not illegal
because of an inherent wrong in the act, as it depends on a guilty
mind, and it is not illegal in order to stop all second marriages as it
expressly provides a defence to anyone who has been abandoned
without trace for over seven years.
Nor is bigamy illegal in order to punish a second marriage, as
such a marriage is unrecognised by the law. It is not illegal in order
to punish a knowledge that the original spouse remains alive, due
to the operation of the proviso, and it does not even seem to be
concerned with eliminating deceit as the law allows those with
pre-existing potentially polygamous marriages to go through further
ceremonies with impunity.
There are also some related offences which need to be
considered. In the case of R v Bham [1966] 1 QB 159 [1965] All
ER 124 a man was prosecuted for the related offence of solemnising
a marriage in a building which was not registered under the Marriage
Act. The ceremony was designed to meet the requirements of the
Islamic faith, but did not confer the recognition of the marriage
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 39


by English Law, and was not intended to. The Court of Appeal
held that the offence of solemnising the marriage was only made
out when the marriage would have been recognised by English
law. As it wasn™t, there was no offence.
Finally, a number of writers allude to the fact that people at-
tempting to marry have to make statements that they are single
and free to marry, suggesting that this covers the question of those
who have a prior potentially-polygamous marriage. False statements,
they argue, could be charged as perjury. However, as Bartholomew
points out in “Polygamous Marriages and English Criminal Law”
(1954) 17 MLR 344, if a man with such a marriage is “single” for
the purposes of bigamy, what is to stop him being “single” for the
purposes of perjury in the very statement he makes to obtain the
ceremony? In fact, from what the courts have said about bigamy,
he would not appear to be lying at all.
Consequently, it appears that the policy of the law is not to
ban bigamy to prevent people lending respectability to their rela-
tionship by going through a marriage ceremony even in England,
for only the official ceremony appears to be capable of founding an
offence.




6085-CHAP
CHAPTER 4“THE CIVIL LAW
AND PLURAL MARRIAGE
There are a number of issues that must be considered with respect
to how the law treats plural marriage. There are the basic ques-
tions of whether plural marriages have any consequences in En-
glish law, what those may be, and how they came to be, and there
is also the intriguing question of what difference is made by a
marriage not being recognised at all.
In the area of Private International Law the courts generally
recognise marriages subject to a “dual domicile” test. This is the
approach favoured by the Law Commission, many writers and most
court decisions. This means that marriages will be recognised if
the marriage ceremony was legally capable of forming a marriage
where it took place (the lex loci celebrationis) and if the parties to
the marriage were free and able to marry according to the law of
their domicile (lex domicili). Both parts of this test are open to
debate. The first part does not adequately recognise the continu-
ing discussion of “common law marriage” which, if it takes place
anywhere, is more likely to take place in foreign countries where
normal English law does not reach, irrespective of local law. The
second part has been put differently by a number of judges, refer-
ring to the law of the intended marital home,(Radwan v Radwan)
or the law of a place with which the parties have a “real and sub-
stantial connection”, (Lawrence v Lawrence) or whichever of the
dual-domicile/marital home tests leads to the marriage being
recognised.(Also Lawrence v Lawrence)
Polygamous marriages also had a further hurdle they could
not clear, added by the decision in Hyde v Hyde and Woodmansee



6085-CHAP
42 SAMUEL CHAPMAN


(1866) LR1 P&D 130. Mr Hyde had gone to Utah and married a
woman there, subsequently renounced the Mormon faith, and had
therefore been renounced in turn by his church and his wife, who
divorced him in Utah. This divorce was not recognised by English
law and Mr Hyde sought a divorce from his wife on the basis that
she had committed adultery by remarrying. His request was denied
by Lord Penzance, who said the court had no jurisdiction over a
polygamous marriage, which was a totally different institution from
“Christian marriage”.
This is significant not only in denying recognition to the mar-
riage, or because of the reasons that Lord Penzance gave, but be-
cause it described Hyde™s marriage as polygamous, when in fact he
had only one wife, because it was entered into under a system
which allowed polygamy. Therefore, when Lord Penzance talked
of polygamous marriages being different, he meant that they
were different even if they only involved one husband and one
wife.
The reasons he relied on included that recognising polygamy
would cause problems because a second marriage would have to be
held adulterous, and this would be creating conjugal duties rather
than enforcing them. This showed that polygamy was a system
with which English law was not designed to deal.
He also believed it unfair to impose Christian standards of
treatment of wives on to men who had married under polygamy,
saying that polygamous wives did not stand on the same level as
their husbands, unlike in Christian marriages. He said that
polygamy was “revolting to the ideas we entertain of the social
position to be accorded to the weaker sex”.
He also based his decision on an earlier comment by Lord
Brougham in Warrender v Warrender (1835) 2 Cl & Fin 488 which
bears quotation in full:-“But marriage is one and the same thing
substantially all the Christian world over. Our whole law of mar-
riage assumes this; and it is important to observe that we regard it
as a wholly different thing, a different status from a Turkish or
other marriages among infidel nations, because we clearly should
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 43


never recognise the plurality of wives, and consequent validity of
second marriages, standing the first, which second marriages the
laws of those countries authorise and validate. This cannot be put
on any rational ground, except our holding the infidel marriage to
be something different from the Christian, and our also holding
the Christian marriage to be the same everywhere.”
Lord Penzance™s reasoning has been criticised in detail by
Poulter, who states that the courts would not need to hold second
marriages adulterous, as adultery is only committed between par-
ties who are not married. Poulter also suggests that Lord Penzance
appeared blind to Victorian laws which meant that women were
not held equal to men and that, in fact, in certain polygamous
societies, women probably got a better deal than in Victorian En-
gland. And of Warrender he says that it was decided in 1835, and
that the Marriage Act 1836 recognised civil marriages without
any religious trimmings, therefore diluting the idea of “Christian”
marriage, to which Penzance referred.
This case denied matrimonial relief to anyone involved in a
marriage in a system that allowed polygamy. It did not extend
beyond matrimonial relief, and indeed in other matters courts began
to recognise polygamous marriages for various purposes. In
Srinivasan v Srinivasan [1946] P 67 the court recognised the first
marriage abroad in order to invalidate the second marriage in En-
gland, as otherwise the man would be living with his lawful wife
in each country and this would encourage polygamy and not frown
on it. Barnard J. went on to state that “to deny recognition of a
Hindu marriage for the purpose in hand would, in my opinion, be
to fly in the face of common sense, good manners and the ordered
system of tolerance on which the Empire is based.”
But the decision in Hyde alone was sufficient to cause significant
problems, and to cause the courts to follow the rule where they
had to, but to take every conceivable opportunity to distinguish
the case. One of the more common ways for this to happen was to
hold, where possible, that a polygamous marriage had converted
into a monogamous marriage.



6085-CHAP
44 SAMUEL CHAPMAN


This was still less than satisfactory and in 1971 the Law
Commission published a report recommending the abolition of
the rule in Hyde. This recommendation was immediately taken up
and now forms part of section 11 of the Matrimonial Causes Act
1973, which allows a marriage to be recognised even if it is
potentially or actually polygamous.
The Law Commission gave detailed reasons for its recommen-
dations, namely that “to close the doors of all matrimonial courts
in England to either party to a polygamous marriage gives rise to
hardship and to a risk of a social problem which, in our view, the
law should not ignore.” The Commission believed the extent of
this problem to be such that following Hyde had caused judges to
be “compelled by ancient authority to come to a conclusion which
manifestly shocks their sense of justice.”
The Commission also said that family relationships validly
created under a foreign system of law should be recognised here,
unless there are compelling reasons of English Public Policy to the
contrary, explicitly recognising the point made by Hartley that
polygamous marriages serve the same social function as their mo-
nogamous counterparts. (see his “Polygamy and Social Policy”
(1969) 32 MLR 155 and his “The Policy Basis of the English
Conflict of Laws of Marriage.” (1972) 35 MLR 571)
The Commission also said that “in the absence of compelling
reasons, it is undesirable that people should be regarded as mar-
ried for some purposes and not for others,” that people married
elsewhere should be protected by English law when they settle
here, and that the taxpayer shouldn™t lose out by maintaining the
wives of a man who could afford to maintain them himself.
The Commission noted that the reform also had the benefit of
extending divorce rights to Muslim women where these were de-
nied by their own country, and of rectifying the position where
the law allowed a husband to escape his responsibilities and gave
his wife no protection against this.
The report therefore suggests the reasons behind the statute
that abolished the rule in Hyde, but the rule change was limited
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 45


to marriages contracted by those with foreign domiciles. The same
section that abolished Hyde formulated a rule that made void a
potentially or actually polygamous marriage entered into outside
England and Wales if either party was, at the time of the marriage,
domiciled in England and Wales.
This latter rule was not recommended by the Commission
but resulted in many immigrant men who had returned to Paki-
stan or Bangladesh to marry being advised that these marriages
were not valid in England.
This advice needed to be altered following the decision of the
court in Hussain v Hussain. Ormrod LJ held that “parliament, hav-
ing decided to recognise polygamous marriages as marriages for
the purpose of our matrimonial legislation, would think it right to
preserve the principle of monogamy for persons domiciled here.”
On this basis he said that if a man domiciled in England married
a woman in Pakistan the marriage was monogamous and recognised
by English law, because the husband™s personal law was English
law, which is monogamous, and the wife™s personal law was Is-
lamic law, which would not allow her to marry a second husband.
If the situation between the genders were reversed, the marriage
would be polygamous and therefore not recognised, because Islam
allows a man more than one wife.
Hussain v Hussain created an anomaly between the sexes, which
the Law Commission duly examined in their second report. The
Commission alleged that the court in Hussein had decided
Parliament™s intention against the weight of evidence in the
Parliamentary debates. They found no other area of law which
made a distinction between monogamous and potentially
polygamous marriages and, interestingly, noted the comment of
Sir Jocelyn Simon P in Cheni v Cheni [1965] P 85, 90 that “after
all, there are no marriages which are not potentially polygamous,
in the sense that they may be rendered so by a change of domicile
and religion on the part of the spouses”. The Commission therefore
recommended that a marriage should not be void because at its
inception it was potentially polygamous.



6085-CHAP
46 SAMUEL CHAPMAN


This recommendation was eventually incorporated into law,
via Part II of the Private International Law (Miscellaneous Provi-
sions) Act 1995, resulting in the current situation that both po-
tentially and actually polygamous marriages entered into by those
with “polygamous” domiciles are recognised as valid by English
courts, and that potentially polygamous marriages entered into by
anyone with an English domicile are recognised as valid by En-
glish courts, leaving only actually polygamous marriages by those

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