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with English domiciles void in English law.
It remains unclear what the effect would be on a potentially
polygamous, and therefore valid, marriage if the husband returned
to the place where the marriage was celebrated and took another
wife, but it seems clear that English matrimonial law has moved
away from treating polygamous marriage as different from mo-
nogamous marriage, preferring instead only to treat it as different
where it is actually polygamous.
As a result of the Matrimonial Causes Rules 1977 a wife in a
polygamous marriage can be added as an additional party to the
proceedings. Where there are two polygamous marriages, following
the ruling in Onabrauche v Onabrauche (1978) 8 Fam Law 107 it
is ˜artificial to state that the second marriage was adulterous™, but
it could be “unreasonable behaviour”, particularly when, like the
case of Quorashi v Quorashi (1983) 4 FLR 706 (FD); 1985 15
Fam Law 308 (CA), the husband had taken a second wife in direct
opposition to his wife™s preference. The court held that she was
justified in deserting him as “in acting without her consent he had
taken a grave step which seriously imperilled the continuance of
their marriage”. This relied on the Indian case of Itwari v Asghari
(1960) AIR (All) 684 that presumed the second marriage to
constitute cruelty in the absence of the first wife™s consent. It is
notable that the first wife™s consent was an issue. The law is not
clear what would happen where the first of the marriages was
initially monogamous or where the first wife freely consented.
The Law Commission has commented that a valid polyga-
mous marriage is recognised as constituting a bar to a subsequent
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 47


monogamous marriage, allowing the second “wife” to petition for
a decree of nullity on the ground of bigamy but, as noted in the
previous chapter, it would not necessarily be sufficient to support
a criminal charge of bigamy.
The law related to Social Security benefits was summed up by
David Pearl in 1986 and remains mostly true today:-“a valid
polygamous marriage is regarded as a valid marriage for all purposes
relating to contributory social security payments so long as the
marriage is in fact monogamous. But if the marriage is actually
polygamous, social security benefits are denied in respect of all
wives, even though the man has been under mandatory contribution
obligations. The position denying benefit exists notwithstanding
the fact that one wife is abroad and has always been abroad.”
The Social Security & Family Allowances (Polygamous Mar-
riages) Regulations 1975 No 561 state that the words ˜marriage™,
˜husband™, ˜wife™ and ˜widow™ describe a matrimonial relationship
of a monogamous character and do not include polygamous rela-
tionships. ˜Wife™ cannot be extended to mean ˜wives™ so there is no
increased retirement pension for a man with two wives, although a
man with one wife will get an increase.
In the case of Iman Din v National Assistance Board [1967] 2
WLR 257 Salmon LJ ruled that Parliament did not provide for the
recognition of actually polygamous marriages for social security
purposes, as the husband™s contributions are calculated “on the
basis of one wife at a time” and so it would be wrong for him “to
reap benefits in respect of perhaps three or four wives”. On that
basis it was thought fair that the husband should contribute and
that none of his wives should be entitled to benefit.
A woman or widow may claim a pension based on her husband™s
contribution as from any date on which her marriage was in fact
monogamous, but not if the marriage remains polygamous. How-
ever, once a married woman is claiming a pension, it will continue
even if her husband remarries.
The rules on child benefit provide for a higher rate to be paid
for the eldest child in a family unit. It includes as a family unit a



6085-CHAP
48 SAMUEL CHAPMAN


normal marriage, an unmarried couple living together as if they
were married, and the members of a polygamous marriage.
Therefore where a man has two wives, who each have children,
only one higher rate will be paid. However, the regulations do not
cover the situation where the people are living in a polygamous
relationship that is not recognised as a marriage, so in that situation
it is conceivable that two higher rates of child benefit would be
paid.
Other benefits treat actually polygamous marriages as if they
were monogamous marriages (e.g. the Social Fund Winter Fuel
Payment Regulations 1998 and The Social Security (Miscellaneous
Amendments) Regulations 2000), counting the earnings of all
members of the marriages in order to calculate benefit due (The
Social Security (Back to Work Bonus) Regulations 1996), or to
reduce benefits due to the age of one of the partners, or treating
them as eligible for special consideration for hardship allowances
where there are similar vulnerabilities (children and pregnancy)
(both in Jobseeker™s Allowance Regulations 1996). Once again,
however, while unmarried couples can be treated as married, to
qualify as polygamous, there must be a valid polygamous marriage,
and a polygamous relationship does not suffice.
For Job Seeker™s Allowance the Benefits Agency advises their
Decision Makers “When a claimant lives as husband and wife with
two or more people and shares time equally with them, the
[Decision Maker] should decide which two members of the
relationship form an unmarried couple. No other member of the
relationship can be treated as a member of the claimant™s
household.” The guidance goes on to advise the excluded person
to make a separate claim, but as single persons normally receive
more than half the benefit of an unmarried couple, this would
seem to cost the taxpayer more, rather than less.
Schedule 7 and section 59 of the Welfare Reform and Pensions
Act 1999 provides a power for the Secretary of State to prescribe in
regulations how the provision for joint claims for Job Seekers
Allowance will be applied to the members of a polygamous
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 49


marriage. The explanatory note that accompanies the legislation
says that “The intention is that where one or more members of a
polygamous marriage are born on or after the date set in regulations
and there are no dependent children, two members of the marriage
will be required to make a joint claim. One of the claimants will
always be the male partner, but the members of the marriage will
be able to choose which of the wives will be the other joint claimant.
Currently, polygamous marriages are recognised under the benefit
system provided they took place in a country where such marriages
are legal. The husband may make a claim for himself and for his
dependents and receives an addition in respect of each of his wives.”
This would seem to disfavour current practice and render the
excluded partner, this time validly married, subject to making a
separate claim as a single person.
The Child Support Regulations define a partner as a member
of a married or unmarried couple living together, and a member of
a polygamous marriage. This allows their income to be considered
as part of assessing a parent™s contribution towards children from
previous relationships. It does not appear to extend to polygamous
relationships, just marriages, and to confuse matters more, when
the Child Support Agency™s Decision Maker™s Guide refers to ex-
ample members of polygamous marriages, they all have English
names, which misses the point that those with English domiciles
cannot contract actually polygamous marriages.
According to the case of Imam Din v National Assistance Board,
if benefit is paid to a woman living alone who is married to a man
either in an actually or potentially polygamous marriage, the Sec-
retary of State is entitled to recover the expenditure from the hus-
band.
The Married Man™s Tax Allowance has now gone, although it
is clear that a polygamously married man could not get an additional
allowance for his second wife, although she could perhaps obtain
an equivalent additional personal allowance if she had children.
The Working Families Tax Credit and Disabled Persons Tax
Credit both contain a balanced recognition of polygamous



6085-CHAP
50 SAMUEL CHAPMAN


marriages, whereby all partners assets and earnings are taken into
account, but where each member of the family is also counted as a
cost against these assets, and therefore capable of generating a tax
credit. Once again, while the Regulations count both unmarried
and married couples as partners, they only recognise those with
valid polygamous marriages, and not those in polygamous
relationships.
In the past, immigration was allowed where the marriage was
valid, but this has now been tightened to meet the statement in
the Immigration Rules that “It is Government Policy to prevent
the formation of polygamous households in this country”. Wives
in potentially polygamous marriages may be allowed entry but
where there is an actually polygamous marriage the rules operate
only to allow entry to one wife, unless she already has a right of
abode. If another wife is or has been in the country, the wife at
Immigration Control will not be allowed entry, even if she was
chronologically married first. Children™s right of entry to the country
depend on the mother™s rights.
However Chapter 8 of the Immigration Directorate™s
Instructions says “Entry clearance may not be withheld from a
second wife where the husband has divorced his previous wife and
the divorce is thought to be one of convenience, even if the husband
is still living with the previous wife and to issue the entry clearance
would leads to the formation of a polygamous household.” This
has led to concerns being expressed concerning Muslim wives being
given civil divorces in order to get second wives through
immigration. The community and perhaps the wives themselves
still regard their marriage as valid and hence the marriage as
polygamous, even though the law does not. This also creates a
peculiar instance of the law encouraging divorce, which is normally
contrary to public policy.
Children of polygamous marriages are recognised as legitimate
for the purposes of inheritance according to Coleman v Shang
[1961] AC 481, [1961] All ER 406 (PC) although this is slightly
limited by not including such things as titles of honour where the
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 51


marriage is actually polygamous.(See The Sinha Peerage Claim
(1939) Lords™ Journal 350; [1946] 1 All ER 926)
According to Chaudhry v Chaudhry [1976] Fam 148 members
of polygamous marriages may use the Married Woman™s Property
Act to determine their respective property rights as according to
Dunn J. “any other conclusion would be an affront to common
sense” as they would be allowed to do some things under the
Matrimonial Causes Act, but not others.
A husband and wife cannot be guilty of the offence of con-
spiracy,( Criminal Law Act 1977, s 2) being one person, and this
extends to those in polygamous marriages, (Mawji v R [1957] 1
All ER 385) although against this notion it has been held that a
polygamous wife is a competent witness against her husband (in R
v Khan (1987) 84 Cr. App. R. 44, where the judge held that the
woman was not a wife under English Law).
In conclusion, the civil law relating to marriage may be more
comprehensively reasoned than the criminal but, in so being, it
covers a wide range of behaviour and arguments which lead to
internal tensions, contradictions and changes. It begins with the
statement in Warrender that ˜Christian™ marriage is “a wholly
different thing, a different status from a Turkish or other marriages
among infidel nations” and that the decision that “we clearly should
never recognise the plurality of wives¦ 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.”
From there it moves to Hyde, where the idea further develops
that even a potentially polygamous marriage, which is monoga-
mous in fact, holds a different status from marriage as recognised
by English law. This relies on a concept of adultery rejected by
later courts and on a system then ill-equipped to deal with polyga-
mous marriages, but which has been making itself better equipped
ever since.
The court in Hyde thought polygamy “revolting to the ideas
we entertain of the social position to be accorded to the weaker



6085-CHAP
52 SAMUEL CHAPMAN


sex” and therefore considered it unfair to enforce ˜Christian™ stan-
dards, but later courts were not so shy at making their conception
of justice available to wives they had considered to be ill-treated,
and the Law Commission secured a comprehensive change in the
law when the days of the “infidel” and “the weaker sex” were seen
to have passed.
This change, which reflects the current law, was based on a
desire to avoid the hardship inherent in non-recognition, to extend
the protection of the law to those in such marriages, to achieve
consistency in recognition, to recognise valid marriages unless there
were compelling reasons of public policy not to, and to protect the
taxpayer from having to meet costs which were properly the
responsibility of the husband.
This explicitly recognised that polygamous marriages serve the
same social function as their monogamous counterparts, rejecting
the previous thinking that they were completely different institu-
tions. But even though this is acknowledged, the law persists in
defining marriage as having two types, monogamous and polyga-
mous, with the ability for any particular marriage to adopt either
form dependent on the domicile and religion of the parties to it.
The law only tends to treat a “polygamous” marriage differently
when it actually involves more than two partners, and uses domi-
cile to treat a difference in quantity as if it were a difference in
quality. This is the after-effect of the judgements in Warrender and
in Hyde, even though their supporting reasons have been swept
away.
When there is an actual difference in quantity, the law will
recognise that a second valid polygamous marriage does not con-
stitute adultery, and implies that the first wife™s consent can stop
it from being unreasonable behaviour. It appears that English
law is at least capable of finding its way in regulating actual
polygamy.
The law formally applies its policy to protect public finances
from actual polygamy by denying actually polygamous wives any
pension, by ensuring that polygamous families are treated as a
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 53


single unit for many types of benefit, and making provision for
Child Support when relationships break down.
However, the law continues to restrict the availability of legally-
recognised polygamy to British subjects. It will recognise actual
polygamy for those with foreign domiciles, but will not allow people
with English domiciles to marry polygamously either here or
abroad.
It is clear then that the reasons for the existing law tend to be
phrased in reaction to the restrictions of the Victorian cases, and
while they justify the existing law, they tend to argue more for
recognition than restriction. In terms of reasons for restriction, we
have only the cases that have since been abrogated by statute, and
bald statements of Government policy, which occasionally do not
appear to achieve the aims that they set themselves.




6085-CHAP
CHAPTER 5“COMPARISON OF
REASONING AND
IDENTIFICATION OF
ASSUMPTIONS
It is clear that both the branches of the law considered thus far
have been tackling different problems. The Criminal Law has been
largely attempting to tackle bigamy, whereas the Civil Law has
been trying to resolve issues related to the legitimacy of polygamy.
Marriages which involve deception of one of the parties by the
other as to their status are somewhat different in nature from those
entered into knowingly by all parties, but both areas of the law
impinge upon the practice or custom of plural marriage which is
the concern of this study, even where that practice does not involve
deception.
As the problems in each area of the law are different it is
reasonable to expect that the solutions will be different also, but it
is desirable that the law should flow from a common set of
principles, that it should be in some sense coherent, and that its
integrity should not be compromised by contradiction.
So far, this study has identified the reasons for the law
propounded by the courts and those who have influenced the
legislature. Before comparing the various reasons advanced, it is
worth considering how they relate to the public policy reasons
suggested by writers. Various writers, helpfully collated by Morse
in (1976) 25 ICLQ 229, have identified the following reasons for
justifying the criminal prohibition of bigamy:



6085-CHAP
56 SAMUEL CHAPMAN


Firstly, to discourage the procurement of sexual relations by
fraud, and the deceit involved. Secondly, to prevent the public
affront to the first wife and the risk of desertion and non-support
involved. Thirdly, to prevent confusion of the public system of
marriage registration. Fourthly, to punish deceit of those officiat-
ing at marriage ceremonies, and finally, to protect religious feel-
ings of offence related to desecrating the marriage ceremony.
It is noticeable that, while some of these are mentioned in
cases as aggravating factors, only the last two appear to attract the
explicit support of the courts, and even these appear to have been
ignored by the courts in preventing a polygamous marriage from
forming the basis for a charge of bigamy.
Having earlier identified the reasoning that has explicitly sup-
ported the law, it can now be examined for similarities of treat-
ment, and for differences, and to show any internal tensions. The
assumptions on which the reasoning rests can then be drawn out
for further comparison with research.
The first noticeable similarity in treatment of these issues is
that they began with at least some religious basis, and that this
basis was linked to some concept of Christian beliefs. The first Act
of Parliament which made bigamy a crime was passed to stop the
“great dishonour of God”, at a time when a Protestant state was
encroaching on the power of the Church, possibly to prevent or
limit any further turn towards Catholicism. It therefore incorpo-
rated into the criminal law a concept from religion, and a similar
event is noticeable in the civil law which, in its early development,
is concerned with “Christian” marriage as opposed to “infidel”
marriages that it would not recognise.
The Civil law would not recognise polygamous marriages not
because it misunderstood them, but because it professed that it
did not understand them. Specifically, the only thing it would say
about them was that they were clearly a different thing from
“Christian” marriage, although courts now talk about
“monogamous” marriage instead of “Christian”. The Criminal Law
has treated polygamous marriages in a similar way, not recognising
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 57


them as constituting the first marriage in a prosecution for bigamy,
although there does not appear to be a case which established
whether they would count as a second marriage for that purpose.
Both areas of law have also needed to change tack with respect
to recognition. Both have made use of the idea of domicile in order
to change “polygamous” marriages into “monogamous” marriages,
and the civil law has gone further by formally recognising
polygamous marriages without them needing to change character,
as long as their polygamous nature is not confirmed by the actual
existence of more than one wife.
Similarly, both areas of law have been motivated by a desire to
address hardship, whether it be to prevent the “undoing of divers
honest men™s children” or to prevent spouses from evading their
responsibilities simply by changing their location, although the
application of the desire to prevent hardship has sometimes been
open to criticism, whether it be leaving Hyde with a limping
marriage, or for some time maintaining a clear gender-based
discrimination in the recognition of potentially polygamous
marriages.
Perhaps more importantly, both have involved what appears
to be a considerable latitude in statutory interpretation, whether
it be to import mens rea into an offence written in absolute terms,
or to redefine the general understanding of the law and the prob-
able intention of Parliament in order to legitimise at least some
marriages contracted by English domiciliaries abroad. No doubt
this tendency is encouraged by the statutes themselves not neces-
sarily having been clear in their motivations, whether because of
administrative re-enactment of ancient provisions in the criminal
law, or due to debatable understanding of the capacity to marry in
civil law.
And finally, this leads to a common problem of uncertainty.
The piecemeal and variable interpretation of the criminal law, and
the reliance on domicile by the civil courts have made it at times
difficult for the individual to appreciate how the law applied to
them. It is still not clear what the effect of actual polygamy would



6085-CHAP
58 SAMUEL CHAPMAN


be on a marriage now thought valid because of the Private
International Law Act 1995, and individuals may be unsure
whether they will be found to have changed their domiciles, and
therefore the status of their first marriages, for the purpose of the
bigamy law. Ignorance of the law may not be an excuse, but it may
be more easily understood when lawyers and judges also appear
unsure, and this extends to the related offence of perjury when one
describes one™s marital status to a Registrar.
There are also a number of areas where the treatment is differ-
ent in practice, despite judges and the Law Commission holding
similarity to be desirable.
The civil courts now appear to accept, following the Law
Commission™s reports and the enactment of some of their recom-
mendations, that polygamous marriages have a similarity in social
function and purpose to monogamous marriages. There is an in-
ternal tension then in the refusal to validate actually polygamous
marriages anywhere by those with a domicile in England, and there is
a clear difference in the way the criminal law cannot base a conviction
on a polygamous marriage because such a marriage is different.
There is a further distinction in that the criminal law is inter-
ested in whether a person is a British subject, wherever they are,
and is only interested in domicile to the extent that it helps indi-
cate whether a marriage is monogamous, whereas for the civil law,
domicile and location can be of extreme importance in determin-
ing whether a marriage is valid, irrespective of whether the parties
are British subjects
A contradiction only recently resolved is that the old law in
Hyde v Hyde was clearly based on a desire to protect women, whereas
Hussain v Hussain resulted in direct discrimination against them,
and whereas Hyde refused recognition on the basis of society™s
conception that women were to be protected as “the weaker sex”,
modern commentators deny recognition because of a concern for
“equal rights”.
Finally, there is the internal contradiction between policy
statements and their effects. Foreign polygamous marriages are
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 59


recognised for some purposes in order to prevent public expenditure,
but on other occasions, and for all polygamous relationships entered
into anywhere by an English domiciliary, extra partners are treated as
single people, and the public purse refuses to take the benefit of the
economies of scale involved in recognising the relationships.
As noted above, both areas of the law assume a religious basis,
although modern practice has been to refer less to this and more to
monogamy. This reflects a past and continuing assumption that
“Christian marriage is everywhere the same” and specifically that
it is necessarily monogamous in character.
The criminal law clearly also assumes a great moral wrong for
bigamy, perhaps based on the religious assumption. As currently
understood, while some of this may refer to deception, this is not
a part of the offence in itself and need not be present. The one
deception apparently always present is not deception of an in-
tended spouse but “fraud of the law”, whereby the law and its
officers are deceived and where the marriage ceremony is used to
trick society at large.
This perceived moral wrong was linked in the past by judges
to other moral wrongs, such as fornication and seduction, and this
moral language has tended to be impressed on other methods of
description used by those judges, so that one talks of the
“prostitution” of the ceremony and another talks of the “wickedness”
of going through it. These morals are said to be those that “no-one
would hesitate to call wrong”, assuming a common moral
judgement and possibly a common foundation for morality.
Aligned to this is an assumption about public concern. The
law talks of scandal, outrage, and public decency. This assumes
that there is a strong common public opinion, and a common
appreciation of seriousness, and that bigamy involves a real
degradation of a valued ceremony. As it relates to the marriage
ceremony and ultimately to marriage itself, this is linked to
assumptions about the social centrality of marriage and traditional
family relationships, as exemplified by the concern that bigamous
marriages lead to illegitimacy.



6085-CHAP
60 SAMUEL CHAPMAN


There is also a basic assumption that there are two types of
marriage that are different, that the difference in quantity implies
a difference in quality. While the civil law has moved with regard
to potentially polygamous marriages, there are still occasions where
actual polygamy, whether a marriage or a relationship, is treated as
different, and the criminal law insists on seeing them as completely
different things, even when this does not assist with the policy
aims suggested for the law. This reflects, in part at least, some
assumption about a difference in purpose and function for two
different types of marriage.
There are also a set of assumptions related to gender. As detailed
above, this used to be described in terms of a “weaker sex” that
needed protection, but is now expressed as an assumption that
polygamy involves some form of oppression or unequal treatment
of women that amounts to sexual discrimination.
One of the most basic assumptions is the assumption of
monogamy. That involves a belief that polygamy is something
“altogether foreign to our ideas” and “practically unknown”, either
something that doesn™t happen much, may be happening less, or
at least doesn™t happen here. This is expressed not only in older
judgements but in modern statutory formulations that portray
the country as monogamous, and attempt to keep the practice of
polygamy outside the borders.
Finally, this is based around the assumption of state formulation
of personal law. The responsibility for dealing with bigamy was
taken from the church, and the job of registering births, marriages
and deaths followed later. The assumption that common law
marriage does not occur reflects this belief that marriage happens
with the active involvement of the state rather than as a contract or
agreement between two or more parties. This is noticeably different
both from countries that allow polygamy, which often ascribe
“family law” to various religious courts, and from those countries
more actively anti-polygamous, such as the United States, which
recognises common-law marriage in order to prosecute polygamous
practice as bigamy.
CHAPTER 6“TESTING
ASSUMPTIONS AGAINST
RESEARCH AND DATA
There are a number of forms of information against which the
identified assumptions can be tested. These range from statistical
information concerning characteristics of the UK population, to
economic theory, to religious history, and to fully-fledged anthro-
pological research. It should, however, be noted that much of this
information is not generated as part of a debate on polygamy, or
on its relationship with the law.
The work in economics tends to be an interesting way of
modelling economic rules, and the anthropological work has
involved studying modern groups, rather than suggesting social
change. In fact, the various types of information have largely
developed in a context where, as in the UK, polygamy has not
been recognised as valid and bigamy has been a crime. Consequently,
the literature does not tend to be part of an ongoing debate on the
merits of a particular lifestyle and, for that reason, combined with
the lack of a real prospect of the legal recognition of polygamous
conduct, it needs to be treated with caution. This study can establish
whether there is research or data which affects the validity of
assumptions made by the law, but must acknowledge that, in the
lack of a developed debate, much of the information is one-sided.
In short, those who may be opposed to polygamy have had little
incentive to put forward their arguments, and so the
assumptions may be questioned, but it is difficult to deal with
them conclusively.



6085-CHAP
62 SAMUEL CHAPMAN


The first assumption that can be tested is the religious basis of
the law. It is worth noting that the courts have retreated from the
religious basis as time has gone on. Instead of referring to
“Christian” marriage, they refer to “monogamous” marriage, but
this is a slightly revisionist tendency, as it is clear that many of the
initial justifications of the current law are motivated or explained
in religious or moral terms.
It is difficult to measure the strength of religious feeling or
community commitment in 1604 when the bigamy law was first
enacted, but the main political contests were between Protestants
and Roman Catholics and many political issues in the 17th cen-
tury possessed a considerable religious element. As evidence of this
it can be noted that the next law on the Statute book was the
Witchcraft Act, showing great concern over religious issues. It seems
safe to say that religious feeling was perhaps integral to public life
and that church membership was high.
In modern times we are more able to assess religious belief by
measuring church membership and attendance. Dr Peter Brierley
at Christian Research estimates a growth over the last century in
the numbers of UK citizens who are nominally Christian (from
32.8 million to 37.7 million), but this has been far outstripped
by population growth, so that the proportion of nominal Chris-
tians in the population as a whole has dropped from 86% to 64%,
whereas nominal members of other religions have grown from
0.25% of the population in 1900 to 4.5% in 2000. When mea-
sured in terms of church membership, the over 8.5 million UK
church members in 1900 had decreased to just over 6 million in
1998, and in terms of Church attendance there was a drop from
10.2 % of the population to 7.7% of the population in England,
and from 12.5% to 6.6% in Wales, in the last twenty years alone.
(See his “UK Christian Handbook: Religious Trends” (2000) Lon-
don: Christian Research)
It appears that even over the last century, there has been
considerable change in the numbers of people with a religious
affiliation, in the strength of the affiliation, and in the way in
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 63


which that affiliation is demonstrated. It is therefore likely that
the commitment of the population to “Christian” ideas about
marriage may be considerably less than it was previously, and certain
aspects of this will be examined later.
However, irrespective of the effect on the assumptions of the
current level and quality of religious commitment, there is evidence
to suggest that the ideas that “Christian marriage is everywhere
the same” and that it is necessarily monogamous are open to
question. Even Poet and Anglican clergyman John Donne, a
favourite of King James 1, wrote “How happy were our sires in
ancient time, who held plurality of love no crime”, Eugene Hillman
gives examples of African churches that accept polygamous
members, and it is clear from a number of writers identified earlier,
both that there is a significant minority opinion across Christendom
which recognises polygamous marriage and that this has been the
case for much of the last millennium at least. (see Cairncross, and
Hillman E, Polygamy Reconsidered”African Plural Marriage and
the Christian Churches (1975) New York: Orbis)
The Victorian judges who pronounced on the reasons bigamy
was a crime were concerned to prevent it as a great moral evil,
similar to fornication and seduction that “no-one would hesitate
to call wrong”. There is evidence to suggest that the position has
changed somewhat from that time. Keith Soothill found “a grow-
ing leniency in sentencing convicted bigamists” between 1973 and
1995, leading to a situation where generally more people were
cautioned for the offence than prosecuted, and in 1994/95 only 3
of 36 offenders went from court to prison, and only one for a
sentence of greater than 1 year (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). This stands in contrast to the
initial fixed sentence of death in the Act of 1604, and the ability
to sentence for up to seven years imprisonment, the severity of
which persuaded the Victorian judges that an intent to do moral
evil was a necessary part of the offence.
There certainly seems to have been a considerable change in



6085-CHAP
64 SAMUEL CHAPMAN


attitudes towards sexual morality. If it ever was true to say that no-
one would hesitate to call fornication and seduction wrong, it is
not true now. It is of course difficult to measure seduction and
fornication but some help can be gained from examining trends in
marriage and cohabitation.
The Office of National Statistics has found that 60% of couples
marrying in 1994 had cohabited first, which broke down into
76% of civil marriages and 41% of religious marriages, and that
16% of 25-34 year-olds were cohabiting in 1996. This would
tend to establish that even those marrying would not seem neces-
sarily to view “fornication” as wrong, undermining the assumption
of a common moral judgement accepted by the population.
The point on legitimacy also seems to have lost its relevance
from the time when Tolson was decided. Official estimates of births
outside marriage hover under 5% for the 400 years between 1550
and 1950 but had increased to 38% by 1998. While legitimacy
may still be preferable, it is difficult to sustain an argument that
bigamy makes much of a difference. Indeed, legal recognition of
polygamy would legitimise children who are currently counted as
being born “outside marriage”.
The rise in illegitimacy and cohabitation tell one half of the
story of the decline in the social centrality of marriage. In the last
30 years the annual number of weddings has declined by over
35% and the percentage which involve religious ceremonies has
fallen from 60% to just over 30%.
Furthermore, it is no longer as easy to claim that polygamy is
“foreign to our ideas” and “practically unknown”. The numbers of
the population which subscribe to a religion that allows or values
polygamous practice has grown considerably. The largest Mor-
mon denomination teaches that polygamy can be good but, as it is
illegal in the United States, prevents its members from engaging
in the practice. The Mormon faith has grown from less than 6,000
UK followers in 1900 to over 180,000 in 1998, the number of
active Muslims has increased from 30,000 in 1960 to over 675,000
in 2000, and the number of active Hindus has increased from
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 65


40,000 in 1960 to 165,000 in 2000. This makes a total of over
one million people who actively subscribe to religions that include
some form of commitment to polygamy.
This all begins to undermine the notion that the monogamous
marriage ceremony is a respected and valued institution that must
be protected from abuse. In particular, it challenges the assumption
that certain forms of behaviour are abusive to the institution. The
law is not clear as to what constitutes an abuse, or what morally
wrong intent is needed for the act. If polygamist Mormons or
Muslims simply want to use a ceremony for purposes of social
recognition, and if no party to the proceedings is deceived, it could
be argued that the ceremony is not ˜profaned™ or prostituted,
because the requisite intent may not be present.
The remaining moral/social concern is related to the concepts
of scandal and public decency. It could be argued that if public
values have moved so far from enshrining protected positions to
marriage and legitimacy, that there is less of a strong common
public opinion to be scandalised. That is not to say that if polyga-
mists were to marry in the UK that it would not attract media
comment, as it undoubtedly would, but it is not clear that it would
be as offensive to a current generation as it would to that of
100 years ago, and it is not clear how offensive it would need
to be to rate as scandal sufficient to justify the existence of the
offence.
The final such issue is the assumption that there are two types
of marriage that are different. As has been commented earlier, T C
Hartley has argued, and the Law Commission has accepted that
the purpose and functions of polygamous and monogamous mar-
riage are similar, and the law now tends for civil purposes to treat
polygamous marriages as if they were monogamous, effectively
changing the nature of the distinction. This is combined with a
recognition by judges that even monogamous marriages can be
rendered potentially polygamous depending on domicile and reli-
gion. It then becomes easier to question the assumption. Is it that
the marriages are different, or that we apply different rules to them



6085-CHAP
66 SAMUEL CHAPMAN


at different times? It is possible that the underlying marriage is the
same, and it is the rules that change.
This also combines with an analysis of the divorce rate. Divorce
has only recently become widely available, but the number of
divorces each year has steadily increased to a level where it almost
matches the number of first marriages and, significantly, the
number of remarriages each year is also not far behind. Hillman
describes this as serial polygamy, where people in fact may not
marry for life, and instead have a number of marriage partners,
only different from polygamy in that the partners are not held
simultaneously, but in succession. This provides a further similarity
between the institutions. (see Hillman E, Polygamy Reconsidered”
African Plural Marriage and the Christian Churches (1975) New
York: Orbis)
It is not possible to measure levels of adultery, but this provides
an informal path for sexual diversity, which is generally beyond
legal sanction, and which also suggests that Western marriage may
often be only formally monogamous. The point is perhaps most
succinctly made by Mahomet Effendi with the statement (quoted
in Cairncross) that “We Turks are great simpletons in comparison
with the Christians; we are at the expense and trouble of keeping a
seraglio each in his own house; but you ease yourself of this burden
and have your seraglio in your friends™ houses.”
The final and most topical assumption to be considered here
is that polygamy is in opposition to women™s rights and is in some
way oppressive. The literature in this area in particular needs to be
treated cautiously, as there has not been a great debate for writers
to respond to, and the contributions in this area are therefore
particularly tentative.
Sebastian Poulter is one writer very concerned that polygamy
conflicts with women™s rights. In both the African context and
with reference to British Muslims he concludes that polygamy
cannot “pass the human rights test” because it is sexually
discriminatory. His argument is that the UK is a signatory to the
International Convention on Civil and Political Rights, and
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 67


therefore that this will affect public policy considerations. Article
23 of the Convention provides that “States Parties to the present
Covenant shall take appropriate steps to ensure equality of rights
and responsibilities of spouses as to marriage, during marriage and
at its dissolution.” Furthermore, while Article 8 of the European
Convention of Human Rights provides for the right to marry, article
14 states that “The enjoyment of the rights and freedoms set forth
in this Convention shall be secured without discrimination on any
ground such as sex¦” Poulter therefore suggests that African and
Muslim polygamy is sexually discriminatory in an important
respect, namely that it allows the man to have two wives, but does
not allow the wife to have two husbands, giving the husband the
exclusive “right to fundamentally and unilaterally alter the family
life of his existing spouse or spouses”.
However, while Poulter seems to be one of the few to consider
plural marriage from a human rights perspective, he does so only
briefly, and there is more to be said in terms of the alleged conflict
with women™s rights.
Firstly, there is an unstated assumption that adding a second
wife to a polygamous family is something done by the man to his
first wife, but this forgets the case of Quorashi v Quorashi, where
the court held that a wife was justified in deserting her husband
when he took a second wife because “in acting without her consent
he had taken a grave step which seriously imperilled the
continuance of their marriage”. The implication that a first wife™s
consent is an issue can mean that polygamy is not purely about
the man™s rights, but about his current wife™s rights also. If a wife
consented or desired such a union, for whatever reason, would it
not be up to her to decide whether her rights were being
compromised? Indeed, for other purposes Poulter himself quotes a
letter from a Mormon wife mentioning the “family and kindred
ties which are inexpressibly dear to me” involving her husband™s
other wives and children, and therefore implying that she did not
see polygamy as something which infringed her rights, but rather
that it was to her benefit.



6085-CHAP
68 SAMUEL CHAPMAN


Also, there is the question of the prospective wife™s rights.
Muslims have usually justified polygamy in terms of provision for
orphans and widows, and to deal with shortages of men. If there is
a right to marry, could it enable a prospective second wife to insist
on a positive rather than a negative right? It would not mean much
to her if there were no men, or no suitable men, available. What if
the only suitable and willing man were already married? Could
her right be denied then? This is echoed in Chapman™s concern
that “man-sharing” may be the only rational response for some
modern women who, if they do not legally share a man, will
effectively be denied marriage. She argues that sharing may be the
most effective way of combining family and career, and that those
who do not share their men formally often find that they share
them informally, through adultery.
It might be said that the conflict between polygamy and
women™s rights is general, as a group, rather than the particular
case of one individual, and that women are oppressed by polygamy
generally, and therefore that equality demands that none be allowed
to enter into polygamous marriage. But it is clear that there is
evidence available from a number of sources to contest this
suggestion.
John Cairncross states that polygamous groups throughout
history have tended to offer a better deal for women than their
monogamous contemporaries. David Friedman, Thomas Bergstrom
(in his 1994 “On the Economics of Polygamy”) and Gary Becker
(in his 1981 “Treatise on the Family”) state that this is not without
reason, as in economic terms it raises the demand for women while
increasing the supply of men, therefore meaning that men have to
do more to attract women and to keep them, and are therefore
inclined to better treat them than under monogamy.
Janet Bennion, in studying a modern Western example of
polygamy argues that female polygamists choose their lifestyle
because of definite benefits it brings them, and that they achieve
status and power through polygamy and the networks it encourages
them to create with other women. For more on this check her
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 69


“Women of Principle: Female Networking in Contemporary
Mormon Polygyny” (1998) Oxford: Oxford University Press.
Finally, Poulter™s conclusions about polygamy and women™s
rights includes the tacit assumption that Muslims or Africans would
be asking the law to recognise only their type of polygamy. As seen
above, this can be upset by involving the consent of the first wife,
but also if polygamists were to argue that both sexes ought to be
allowed plural partners, this would meet their requirements and
would not be prima facie sexually discriminatory. As polyandry is
incredibly rare in history, possibly for some of the reasons sug-
gested by economists, this may not be viewed by them as too
painful a concession, especially if their consent was needed before
it could apply in their own case.
In summary, the concern in Hyde that polygamy oppresses
women, which has been transformed into a concern about equal
rights, cannot simply be answered by categorising polygamy as
sexist, for the demand could be for the law to allow it to both
sexes, it affects the rights of women who may want to be in such
relationships, and the evidence that is available suggest it cannot
be taken for granted that polygamy as an institution is harmful to
women™s interests.
Many of the assumptions which underpin the law have been
undermined by demographic change, or have been laid open to
question by research, such that the basis for the current law on
bigamy and polygamy is no longer capable of being justified with-
out dissent. In particular, it is not possible at this stage to close off
reform on the basis of human rights considerations, which are more
complex than the little research that has been done so far would
suggest. With the law™s own justifications open to attack, and with
the need to assess laws for their necessity and proportionality in
human rights terms, it is important to examine the various pos-
sible effects and opportunities presented by the incorporation of
the European Convention of Human Rights into UK law.




6085-CHAP
CHAPTER 7“PLURAL
MARRIAGE AND HUMAN
RIGHTS
The Human Rights Act 1998 has applied in England and Wales
from 2 October 2000. It incorporated the European Convention
on Human Rights into UK law. It did not do this by constitution-
ally enshrining the rights and giving the courts power to overturn
incompatible legislation. Rather it sought to affect interpretation
of existing laws where possible, identification and amendment of
existing legislation where incompatible, and to force Parliament to
consider compatibility in each new law it passes.
Section 3 of the Act provides that “So far as it is possible to do
so¦ legislation must be read and given effect in a way which is
compatible with the Convention rights.” This departs from the
tradition of construing texts in terms of the meaning that Parlia-
ment intended. It is no longer a question of what a text actually
means, as a question as to whether it can have a meaning which is
compatible with the European Convention.
Where the courts cannot construe the legislation in a compat-
ible way they can make a declaration of incompatibility and, if a
Minister considers there are compelling reasons for doing so he
may, by Order, make the necessary amendments to legislation,
which need to be passed by both Houses of Parliament before
taking effect, although they do not have to go through the full
three readings and Committee stage in each House.
It is important to note that the rights are not absolute and
they may conflict. Competing rights have to be balanced and some



6085-CHAP
72 SAMUEL CHAPMAN


rights are qualified, allowing the state to breach them if it is “nec-
essary in a democratic society” for certain specified purposes, but
such breaches may only be proportional to the ends they seek to
achieve.
Furthermore, public authorities may not act in a way incom-
patible with a Convention Right unless legislation gives them no
choice, and when Courts are interpreting convention rights they
must have regard for decisions made previously by the relevant
European bodies, such as the European Court of Human Rights
and the Commission, but it does not oblige them to follow those
decisions. Parliament remains supreme and the House of Lords
remains the highest court. However, the European Court has held
that states have a “margin of appreciation” which can entitle them,
because they best know local conditions, to some room for ma-
noeuvre in application of the Convention, and it is anticipated
that this will at least decrease, or perhaps be eliminated, when the
UK courts are entitled to decide cases on a Convention basis.
At the time of writing, it is not possible to cite any UK cases
decided under the Act for none have yet been made, but it is
possible to consider the potential areas under which claims could
lie, and the likely arguments that could be made.
With regard to the right to a fair trial enshrined in article 6, if
a man who has a potentially polygamous marriage cannot determine
whether his domicile has changed and therefore cannot determine
whether he is married for the purposes of bigamy legislation then
it may be doubted whether he can have a fair trial. It is one thing
for ignorance of the law to be no excuse, but when the application
of the law to any individual contemplating an act in full knowledge
of the law is uncertain, it may be difficult to demonstrate fairness,
or to demonstrate that the necessary intent was present. Therefore,
article 6 of the Convention could conceivably mean that those
with potentially polygamous first marriages may not be subject to
prosecution for bigamy involving a second marriage in England
and Wales. Certainly any man whose prosecution failed on this
point may find himself able to go through as many bigamous
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 73


ceremonies as he chooses, so long as he doesn™t make a change of
domicile more certain.
With regard to the right to respect for private and family life
enshrined in Article 8, there have been relatively few applications
to the European court on the subject of polygamy. What cases
there have been have been decided by the Commission rather than
proceeding to the full court.
In the case of M & OM v The Netherlands (Application 12139/
86) a Moroccan national and his father appealed against Dutch
immigration laws which denied the son a residence permit on the
basis that he was the son of a wife living in Morocco, rather than
the son of a wife living in the Netherlands. They complained of a
breach of article 8 (family life) in that the son could not stay with
his father in the Netherlands, and of Articles 8 and 14 (equal
treatment) in that the immigration policy discriminated against
the children of one wife on the basis of their place of birth.
The Commission held that its case law does not guarantee a
right to enter or reside in a particular country and that, as the son
was a non-dependent adult, no family life within the meaning of
Article 8 existed, therefore removing the basis for complaint. The
Commission made the following statements which are of interest
“When considering immigration on the basis of family ties, a Con-
tracting State cannot be required under the Convention to give
full recognition to polygamous marriages which are in conflict with
their own ordre public. This does not mean, however, that there is
no right to respect for the family life of a father and his children
born by different wives in a polygamous marriage.” The Commis-
sion also mentioned that the Dutch restriction of entry to the
children of one wife only could “give rise to problems in relation to
minor children”.
In the case of E.A. & A.A. v The Netherlands (Application
14501/89), on very similar facts, the Commission also held that
the immigration policy was clearly related to the economic well-
being of the country, due to concerns about population density
and the labour market.



6085-CHAP
74 SAMUEL CHAPMAN


In the case of Bibi v the United Kingdom (Application 19628/
92) a daughter complained that her mother was being refused
entry to the UK on the basis that she was the first of two wives and
that the second wife had already settled in the country. The UK
government explained that UK policy is to prevent the formation
of polygamous households, “the practice of polygamy being unac-
ceptable to the vast majority of people in the United Kingdom”.
The complaint was of an infringement of the right to respect for
family life and that the mother had been discriminated against on
grounds of sex in that the law effectively allowed the husband to
choose which wife could join him.
The Commission again mentioned that its case law gave no
right of entry, even for married couples, but held that in this case
the refusal of entry interfered with the daughter™s right to respect
for family life. The Commission considered that the aim of the
legislation appeared to be “the preservation of the Christian based
monogamous culture dominant in that country” which was a le-
gitimate aim falling within the scope of protection of morals or the
rights and freedoms of others within the exceptions to Article 8. In
considering whether the interference was “necessary in a demo-
cratic society” the Commission felt that States has a certain margin
of appreciation in the field of immigration policy, and that the
existence of the offence of bigamy for hundreds of years helped to
establish that polygamous marriages were in conflict with the UK™s
legal order, and so, in establishing an immigration policy the UK
could not be required to give full recognition to polygamous mar-
riages. The Commission also held that there was no sexual dis-
crimination by the UK, as the law was neutral as to gender and it
was only the father™s practice that was discriminatory, for which
the UK could not be held responsible.
From these cases it can be seen that a restriction in immigration
policy can interfere with family life where younger children are
involved, that the government relies on the practice of polygamy
being unacceptable to the vast majority of people in the country,
and that Article 8 gives no right of entry over immigration policy,
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 75


even for monogamous couples. Specifically, in areas of immigration
policy there can be no requirement to give full recognition to
polygamous marriages where they conflict with the Christian-based
monogamous culture evidenced by the bigamy law, as this is covered
by the protection of morals or the rights and freedoms of others,
and there is a clear margin of appreciation in this particular area.
The cases do not give much of a lead in areas apart from immi-
gration, where it is admitted there is a considerable margin of
appreciation, and it is not clear what the effect would be if the
flaws or interpretative fluidity of the bigamy laws (or their appli-
cation to polygamous practice) were challenged, or if the assump-
tions about public objections or the Christian-based monogamous
culture were to be undermined.
Interestingly the point about sexual discrimination and Article
14 helps to meet the point raised about gender discrimination in
the previous chapter. Were the law to recognise polygamy for both
sexes, and it was only practised by men, on similar reasoning the
Government would not be responsible for the discrimination.
With regard to the right to freedom of thought, conscience
and religion enshrined in Article 9, this right is particularly inter-
esting in that it not only provides for the freedom to change reli-
gion but also for the freedom to manifest, observe and practice
that religion. There are no ECHR cases that bear directly on the
question of polygamy in this regard, but it should be noted that
one of the main points is whether the exceptions to the right are
“necessary in a democratic society”.
The clearest reference to this concept is in the US courts™
treatment of polygamists, where the Supreme Court has ruled that
a Mormon polygamist could be punished for practicing polygamy,
even though his religion required it and the US Constitution
prevented laws prohibiting the free exercise of religion. The current
prohibition on polygamy is held in place because a “compelling
state interest” can proscribe religious actions even where it cannot
proscribe belief, and such an interest is established by the central
importance of marriage and the view that polygamy “fetters the



6085-CHAP
76 SAMUEL CHAPMAN


people in stationary despotism”, could not coexist with monogamy
and subverts democratic ideals.
This approach could provide a basis for a court to support
anti-polygamy laws as being “necessary in a democratic society”
but it is worth noting that it has come in for a great deal of criti-
cism for allegedly misrepresenting the intentions of the framers of
the constitution, (see Ryerson B, “Religious Freedom, Polygamy
and the Law”, available online) and for creating an unsustainable
distinction between belief and action. In particular, Elizabeth
Harmer-Dionne argues that the restriction on actions changed the
belief of the Mormon religion and so the restriction had a much
more powerful effect in reality than it appears to have on paper.
(see her “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)
Points made elsewhere about interpretation in the light of
present-day conditions and the need for proportionality should be
noted here. It is clear that the law has allowed and recognised
polygamy to some extent. It may then find it difficult to argue
that its existence is subversive to democracy.
With regard to the right to freedom of expression enshrined in
Article 10, proponents of strong views of freedom of expression
will see the denial of recognition for polygamous marriages, to-
gether with the prosecution of those polygamists who seek to at-
tain such recognition through use of civil wedding ceremonies, as
a denial of the validation which is part of free expression. Hence
denial of recognition of polygamy could be a denial of free expres-
sion, but it would necessitate a strong view to be taken by the
courts, and there is as yet no evidence that such a view will be
taken.
Article 12, which provides that “men and women of marriage-
able age have the right to marry and to found a family, according
to the national laws governing the exercise of this right” is one of
the obvious candidates for any future arguments affecting the law
on bigamy and polygamy. This could feasibly be argued from two
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 77


points. Firstly the husband could argue that to prevent him from
marrying again was an encroachment upon his rights, discrimi-
nating against him because of his marital status, contrary to Ar-
ticle 14. Alternatively the prospective second wife, who may actu-
ally be living with the husband, could argue that her right to
marry was being encroached upon.
There are no specific exceptions to article 12, but there is the
qualifying clause about the national laws. There have been rela-
tively few full judgments on the right to marry and some guidance
can be obtained from these as to what this means.
In the case of Rees, a transsexual argued that UK law did not
give him a change in legal status along with the sex-change opera-
tion, preventing him from marrying someone of the appropriate
gender as this would be a same-sex marriage. The Court held that
the right to marry guaranteed by Article 12 refers to the tradi-
tional marriage between persons of opposite biological sex, and
that this was supported by the wording which made it clear that
Article 12 is mainly concerned to protect marriage as the basis of
the family.
The Court also held that the qualification “according to the
national laws” must not restrict or reduce the right in such a way
or to such an extent that the very essence of the right is impaired,
but that a restriction preventing marriage of those who are not of
opposite biological sex did not do this.
In Johnston and Others (Application 9697/82), it was argued
that Ireland™s refusal to allow divorce restricted a man™s right to
marry by removing his future capacity so to do, but the Court felt
that the ordinary meaning of the words “right to marry” covered
the formation of marital relationships but not their dissolution.
The express reference to “national laws”; meant that the Court did
not consider that, “in a society adhering to the principle of
monogamy, such a restriction can be regarded as injuring the
substance of the right guaranteed by Article 12.”
In the case of F v Switzerland (Ref. 21/1986/119/168) the
Court held that the use of a compulsory waiting period between



6085-CHAP
78 SAMUEL CHAPMAN


divorce and subsequent remarriage was a violation of the right to
marry. In so doing it held that the Convention must be interpreted
in the light of present-day conditions and that the field of
matrimony was “closely bound up with the cultural and historical
traditions of each society and its deep-rooted ideas about the family
unit.” The Court also held that, given that the potential new wife
was “neither under age nor insane, her rights were in no way
protected” by the waiting period, and that an unborn child could
have been adversely affected by the prohibition, not because of the
law but because of prejudices that would result in social handicap.
The state was found to have used disproportionate interference to
pursue a legitimate aim, and therefore lost the case.
In the Cossey case, which was another transsexual case,
differentiated by the presence of a man willing to marry Cossey,
and the going through of a void ceremony of marriage, the Court
ruled that “as regards Article 12, whether a person has the right to
marry depends not on the existence in the individual case of such
a partner or a wish to marry, but on whether or not he or she meets
the general criteria laid down by law”, and found that “attachment
to the traditional concept of marriage provides sufficient reason for
the continued adoption of biological criteria for determining a
person™s sex for the purposes of marriage, this being a matter
encompassed within the power of the Contracting States to regulate
by national law the exercise of the right to marry.”
From these cases it can be seen that the phrase “according to
the national laws” cannot be used as a carte blanche to impair the
very essence of the right. This essence has been interpreted with
reference to cultural traditions, to a social adherence to the accep-
tance of monogamy, and specifically to the continued adoption of
biological criteria for determining a person™s sex for the purposes of
marriage. Indeed, in the transsexual cases, the courts were pointed
to the judgment in Hyde v Hyde to establish the nature of marriage
as “the voluntary union of one man and one woman for life”.
But balanced against these considerations is the need for the
Convention to be interpreted in the light of present-day conditions,
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 79


that the transsexual cases reflect the wording of marriage as the
basis for a family, and that when children are made illegitimate (as
they also are by non-recognition of polygamy) there is the possibility
that the state restrictions are disproportionate to the aim. Also it
could be argued by analogy that a prospective polygamous wife™s
rights are not protected by a ban on polygamy as long as she is
“neither under age or insane” and therefore that she can decide
what to do with her rights in these matters. Also if the existence of
the right to marry does not depend on the existence of a person
she could marry, it may be difficult to argue that the right is being
denied to a potential wife of a polygamist on the ground that she
could marry someone else.
Finally, it is to be noticed that there are potential crossovers
between this subject and the area of same-sex marriage. Were same-
sex relationships to be accepted as marriages this could sufficiently
undermine the traditional conception of marriage to increase the
chances of recognition of polygamy. Were they instead to be
recognised in a registered relationship seen as broadly equivalent
to marriage, but not actually as marriage, what would there be to
stop a first wife from marrying a second, entailing many of the
consequences of legal recognition of the polygamous unit?
Where the rights mentioned above are capable of being
restricted it is only for certain defined purposes. For the right to
private and family life (Article 8) these are “the interests of national
security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.”
For freedom of thought and religion (Article 9) these are “in the
interests of public safety, for the protection of public order, health
or morals, or for the protection of the rights and freedoms of others.”
For freedom of expression (Article 10) these are “the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence,



6085-CHAP
80 SAMUEL CHAPMAN


or for maintaining the authority and impartiality of the
judiciary.”
According to Article 14 the enjoyment of the rights and free-
doms in the Convention shall be secured without discrimination
on various grounds including “other status”. Article 17 prevents
the limitation of the rights to a greater extent than is provided for
in the Convention and Article 18 confines the restrictions so that
they may only be applied for the purpose for which they have
been prescribed.
Those reasons for restriction which are most likely to arise in
the context of polygamy may be identified as protection of health
or morals, and the protection of the reputation or rights and
freedoms of others.
The protection of health could only be offered with evidence
that polygamy provided some risk to health that would otherwise
not exist. As the alternative is not only monogamy, but also the
whole variety of sexual morality prevalent today, it is not easy to
see how polygamy may be especially risky. Concerns about sexually
transmitted diseases would concentrate on a plurality of partners,
but as polygamous systems also emphasize fidelity, they are not
significantly more likely to encourage the spread of disease. There
would be a need to show that there was something about polygamy
that was harmful, and indeed, so harmful that the law should
intervene to protect people from their preferred choice. Is such
evidence exists, it is not widely publicised, and runs contrary to
the conclusions of those like Altman and Ginat (in “Polygamous
Families in Contemporary Society” (1996) Cambridge: Cambridge
University Press).
The protection of morals would of course depend on the
preservation of the moral of monogamous marriage, which the
European Court has recognised (in Bibi v UK). However, it seems
that there has been no great argument over the morals involved. It
is far from clear in law that public morality should be Christian, or
that Christian morality should be monogamous. This would be
the protection of the morals of some people, but not others, and
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 81


the protection of morals would need to be interpreted in the light
of modern conditions. This would include a backdrop of a largely
non-monogamous society. There may be no substantial
monogamous morals to preserve.
The “protection of the reputation or rights and freedoms of
others” is then the remaining justification for a restriction. Clearly
the addition of a new partner has an effect on an existing partner™s
rights and freedoms, and so, following the ruling on divorce and
unreasonable behaviour, where there is a lack of consent it could
be seen that this justification could have substance. It is not so
easy to see how this could extend to situations where consent was
present, as then the law would be insisting on granting “freedoms”
which were unwanted. The possible exception to this relates to
whether consent can properly be determined while a relationship
subsists. In short, how could the courts tell if a woman freely con-
sented to her husband marrying another woman, or whether she
only did so under great pressure, such as a threat of divorce? There-
fore, the Crown could argue that in order to protect those who
would be so pressured it would be necessary to ban everyone from
being polygamous, but it is not clear that this is a proportionate
and effective way of obtaining the goal. It would be like saying
that no-one should be allowed to marry or to divorce, for some
may have been pressured into it.
Any restriction based on the above purposes can only be adopted
where necessary in a democratic society. If there is another available
method for obtaining the same goal, but which does not violate
the Convention, or if the purpose makes the restriction only
desirable, and not necessary in a democratic society, then the case
is not established. And should a case be established, the degree of
restriction must also be proportionate to the purpose under the
Convention. The existence of polygamous relationships in democratic
societies without legal sanction is an obstacle to establishing that
the restriction of polygamous marriages is necessary. The use of
“democracy” to restrict polygamy in the United States would be
different for two reasons. Firstly, there the law actively includes



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82 SAMUEL CHAPMAN


polygamous relationships as banned behaviour by defining them as
a form of marriage, so there is a legal sanction. Secondly, it appears
that Mormon polygamy may have been a threat to democratic
government, not because it was polygamy, but because it was a
manifestation of the power of a religious alternative to government
in a frontier society. As that threat no longer exists, the argument
that only monogamy can be allowed if democracy is to survive is
no longer credible.
In addition, any argument that the non-recognition of po-
lygamy was required would fall foul of the fact that the law already
recognises certain polygamous marriages, and has done so for many
years without apparent threat to health, morals or democracy.
In conclusion, it is clear both that a number of convention
rights have the potential to impact on the legal treatment of po-
lygamy and that the precise way in which they will be translated
into law is not predictable. However, the passing of the Human
Rights Act offers an opportunity to identify and test the reasoning
and assumptions behind the law in the courtroom, and to account
for social change since the laws were passed, and while the little
legal analysis that there has been has tended to briefly exclude
polygamy on the basis of women™s rights, it seems clear that this
will not be done so easily as there are a number of points to be
considered by the courts before a judgement can be made.
The Convention, by limiting the scope of restrictions to the
rights seems to assist the polygamist™s case, if a right can be iden-
tified as being involved in a particular set of circumstances. The
identification of such circumstances and the rights involved are
necessarily speculative before any English cases exist, but they do
illustrate the potential for challenge.
CHAPTER 8“OPPORTUNITIES
FOR CHANGE IN THE LAW
The entrance of the European Convention of Human Rights into
domestic law presents a number of definite opportunities for the
law to be tested. Effectively, the Human Rights Act may have
amended the meaning of the laws that governed polygamy and
bigamy both in criminal and civil spheres. Due to the nature of
the Act, it will only become clear what has changed when the
courts deliver their judgements, and that will depend on the facts
of the cases which are presented. Until then, this book can begin
to identify possible areas of challenge.
The main tools of challenge are, firstly, establishing that the
pre-incorporation law is incompatible with convention rights. Sec-
ondly, complying with the Human Rights Act will occasionally
mean that other legislation should be construed according to pos-
sible meanings rather than actual meanings in order to avoid breach
of protected rights. Thirdly, public authorities may not act in a
way incompatible with the Act. This binds the police, the courts
and Registrars of marriages.
In terms of incompatibility, as mentioned in the previous chap-
ter, there are a number of rights that are at issue in any case about
polygamy.
In order to establish the right for polygamists to have their
marriages legally recognised, and for no criminal sanction to apply
to their actions, it would be necessary to prove that their convention
rights were being breached, in a disproportionate way or without
lawful authority. If this could be established, it would then fall to
the courts either to find some acceptable way of reinterpreting



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84 SAMUEL CHAPMAN


existing law in line with the convention, or to make a declaration
of incompatibility.
It would be simple enough for the courts to avoid the issues at
the earliest opportunity by interpreting the Convention in a way
which restricted the meaning of the terms so as to exclude plural
marriage from the “marriage” and “family life” mentioned in the
Convention. It may be argued that plural marriage was not in view
when the Convention was framed, or that only monogamous or
“lawful” family life was being referred to. Either way, such an
approach would avoid any consideration of proportionality or
reinterpretation of existing law.
However, in this regard, Article 14 of the Convention is
particularly important as it establishes equal treatment in
enjoyment of the rights. This is interesting in that British law does
recognise some polygamy and allows some polygamists to go through
bigamous ceremonies without punishment.
It has already been established that British citizens and resi-
dents who do not have a British domicile may go abroad and con-
tract an actually polygamous marriage that will be recognised as a
valid marriage under English law.
Therefore if a married person with an English domicile were
to go abroad, lawfully marry under a polygamous law, and return
to England, the law would treat them differently, by not recognising
the marriage, purely on the basis of domicile. It could be argued
that the person with the foreign domicile has better rights than
the person with the English domicile, and that because of this the
law was breaching article 14 (equal treatment) in conjunction with
article 8 (respect for family life) and article 12 (right to marry).
The breach would depend on domicile being recognised as an
“other status” under article 14, possibly on account of its similarity
to race, national origin and birth, which are each listed in article
14.
Article 14, when combined with British recognition of foreign
polygamy, can establish that polygamous marriages fall within
“marriage” and “family life” in Articles 12 and 8. This shifts the

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