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POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 85


debate to the question of whether the breach is allowed for a
specified purpose.
The purposes have already been covered at the end of the pre-
vious chapter. It should be noted however that any reason justify-
ing the breach would have to pass the Article 14 test. In other
words, if “protection of morals” should prevent the recognition of
polygamy for those with English domiciles, it would be necessary
to show why that reason does not also apply to those with foreign
domiciles, but who are living in England. It is submitted that this
would be extremely difficult to do.
If the restriction test is capable of being passed it would still
be necessary to show that the restriction was proportionate, and
again, why it is proportionate to restrict those who hold an English
domicile and not others.
In each of these cases, any arguments used to defend the status
quo are capable of challenge on two points. Firstly, are they com-
patible with the arguments for that restriction that have been ad-
vanced over the history of the law in England or are they novel and
without significant backing? Secondly, do they take account of the
social and legal change demonstrated earlier in this book? The law
needs to be justified on present evidence, not that of centuries
past.
It is possible to perform a similar exercise with regard to the
criminal law. A man with a foreign domicile and a potentially-
polygamous marriage (or, for ease of argument, an actually-
polygamous marriage) can go through a ceremony of marriage in
this country without any danger of prosecution for bigamy.
Someone who is monogamously married (or whose marriage has
been converted into monogamy by the law from its potentially-
polygamous origin) could be prosecuted for bigamy. The criminal
law is then discriminating purely on the basis of domicile. A
combination of the right to a fair trial, and the provision on non-
discrimination would suggest that if the man with the foreign
domicile cannot be tried, then neither should the man with the
English domicile. Essentially, the trial is no longer fair because



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possession of a certain domicile should lead to a not guilty
verdict in every similar case.
With regard to reinterpreting the criminal law, as we have
seen, the criminal law depends entirely on one section of the Of-
fences Against the Person Act 1861. The vital elements are “Who-
soever, being married, shall marry any other person during the life
of the former husband or wife”.
The law is clear that the first marriage can only refer to a mo-
nogamous marriage, and that the second can only refer to going
through a ceremony of marriage.
If a polygamous marriage is protected by a convention right
and the law of bigamy would involve an unjustifiable breach of
that right, then it must be asked whether a change in interpretation
could remove the breach.
There are a number of possibilities for such a change in
interpretation.
Firstly, it is acknowledged by the courts that “being married”
means “being married monogamously”, and that in certain
circumstances any marriage can change from being monogamous
to being potentially polygamous. If a marriage was to change its
nature to being potentially polygamous then the defendant would
no longer meet the qualification that he was monogamously
married. Such a change can be made by a change of domicile or
personal law. Were polygamy to be fully recognised by the civil
law, this change in itself may be enough to allow an initially
monogamous marriage to change to being potentially-polygamous,
and what better proof of polygamy than publicly entering into a
marriage with another partner?
Secondly, it is already the case that the second marriage refers
to a marriage that is in fact invalid. Were the reference to the sec-
ond marriage to be restricted only to an “invalid marriage” then
civil recognition of polygamous marriages, in rendering them valid,
would mean they could not found a prosecution for bigamy.
Thirdly, the first marriage can only be made out by a monoga-
mous marriage. Were the courts to adopt this interpretation for
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 87


the second marriage, then a polygamous second marriage could
not result in a bigamy prosecution. The offence would then be
restricted to obviously monogamous marriages, and so marriages
that did not involve deceit as to marital status would fall outside
the definition of the offence.
Fourthly, it has been shown that bigamy requires an evil intent.
It would be possible for judges to be more specific about this intent.
Given that civil marriages are not allowed to bear religious
trappings, it may be no offence to such a ceremony for polygamy
to be a result. It is possible that the intent could only be to profane
a monogamous ceremony of marriage, or even a religious
monogamous ceremony. Alternatively, the intent may only be made
out where deceit is involved. Merely intending a polygamous
marriage without deceit may not be enough to prove an offence of
bigamy.
Fifthly, the section does not apply where the defendant has
been “divorced from the bond of the first marriage”. Were the
“bond” of the first marriage to be taken to be its monogamous
character, rather than its entire existence, then again a polygamist
would commit no offence.
Of these options, only the last involves stretching the mean-
ing of words into a wholly new definition. The first three involve
applying the way the law treats one of the marriages to the other,
and so involve possible meanings that the courts could feel able to
adopt. Any one of these interpretations could suffice, and the courts
could adopt more than one if they chose.
What is clear is that reinterpretation is possible. The first three
options depend on a change in the civil recognition of polygamous
marriages. But in so doing they show that the courts could not
rely on the criminality of bigamy in order to prevent changing the
civil law, as a change to the civil law could easily be reflected in the
criminal law so that there was no conflict.
It is also clear that reinterpretation of the criminal law is not
dependent on the civil law. If the balancing of rights and the
application of proportionality did not lead to civil recognition of



6085-CHAP
88 SAMUEL CHAPMAN


polygamous marriages contracted in England, it would still be
open to the courts to hold that the greater consequences of
criminal conviction could justify a restriction in the intent
implied by the Act, so as to exclude polygamists from the crime
of bigamy.
In either case, whether polygamy was civilly recognised or not,
it would not be necessary for the courts simply to declare incom-
patibility with the Convention, for reinterpretation would be pos-
sible. Therefore for the law of bigamy to change, so that public
marriage ceremonies involving polygamists were no longer crimi-
nal, would not need any reconsideration of the subject by Parlia-
ment. It need not be a matter for political controversy, or further
legislation. In law, it may already have happened, and may only
require a case to provide grounds for the decision.
With regard to reinterpreting the civil law, the current legisla-
tion governing the formal civil recognition of marriages is con-
tained in the provisions of section 11 of the Matrimonial Causes
Act 1973 which provides that “A marriage celebrated after 31 July
1971 shall be void on the following grounds only, that is to say¦(b)
that at the time of the marriage either party was already lawfully
married; or¦(d) in the case of a polygamous marriage entered
into outside England and Wales ¦ either party was at the time of
the marriage domiciled in England and Wales¦For the purpose
of paragraph (d) of this subsection a marriage may be polygamous
although at its inception neither party has any spouse additional
to the other.”
It is worth briefly recapping the treatment of this section by
the courts.
It was thought by writers and lawyers that paragraph (d) meant
that people domiciled in England and Wales, and perhaps return-
ing to marry in a country which allowed polygamy, would have
marriages that were void in English law.
In Hussain the courts took the very different view that actually
polygamous marriages were invalidated by (b) and so (d) must
refer to something else, namely potentially polygamous marriages
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 89


only, and marriages abroad by someone with an English domicile
could only be potentially polygamous where their personal law
would allow remarriage. This was only the case when a woman
domiciled in England married a man with a domicile that allowed
polygamy, for he was free to marry again. But a man domiciled in
England was prevented from remarrying by English law, and his
wife prevented from remarrying by her personal law, so the marriage
was in fact monogamous, and therefore could be valid.
The Law Commission were fairly scathing about this interpre-
tation, and the Private International Law Act 1995 ensured that
potentially-polygamous marriages would not be rendered void sim-
ply because they were entered into under a law which allowed
polygamy. Using the reading of Hussain, paragraph (d) of the 1973
Act was rendered meaningless.
It is submitted that the reading of the law in Hussain is
tortuous, and that it goes further than it needed to in order to
recognise some marriages. It would have been sufficient to rely on
the latter part of the reasoning to turn potentially-polygamous
marriages into monogamous marriages. The arguments about
section (b) were unnecessary. It is submitted that they were made
in order to prevent polygamy being recognised by the law, for an
alternative reading would allow that.
Reading the whole section together, it renders void those
marriages where one party is already “lawfully married”, but only
renders void those foreign polygamous marriages where one party
is domiciled in England and Wales. “Polygamous” marriages
specifically include potentially-polygamous marriages but, as this
sub-set is added in at the end, the term also appears to include
actually polygamous marriages. But if they are actually polygamous,
they would already be void by virtue of paragraph (b). Paragraph
(d) implies that actually polygamous marriages abroad are not void
unless one party is domiciled in England and Wales, but that would
mean that “lawfully married” in paragraph (b) did not include
polygamous marriages. In effect, it would mean “lawfully
monogamously married”.



6085-CHAP
90 SAMUEL CHAPMAN


So, reading the whole section together means that paragraph
(b) renders void any marriage entered into by someone
monogamously married, and paragraph (d) renders void any
marriage entered into by someone with a domicile in England and
Wales under a law which allows polygamy. The Act is not denying
recognition to foreigners whose marriages abroad are actually
polygamous.
But as the section is drawn absolutely, stating that there are
no reasons for declaring void a marriage other than those listed,
there is nothing to say that a polygamous marriage in England
and Wales would be void. Monogamy cannot be assumed, due to
the section™s specific mention of polygamous marriage, and the
restriction of paragraph (b) by paragraph (d) means that there is
nothing to prevent someone with a potentially or actually-
polygamous marriage from having a further marriage in England
and Wales recognised as valid, notwithstanding that it is actually
polygamous.
Hence, the tortuous reasoning in Hussain acts to prevent the
law from introducing polygamous marriage to England and Wales,
but establishing a violation of Convention rights could provide
sufficient justification for dispensing with the convoluted reasoning
in Hussain.
Clearly there is less scope for creative interpretation in civil
law than with the law on bigamy. The “marriage celebrated”
cannot be restricted to a monogamous marriage only, due to
the later reference which makes clear it includes polygamous
marriages.
However, it would still be possible for the courts to follow the
example of the criminal law and apply the restriction of monogamy
to the marriage in paragraph (b), so that only an existing monoga-
mous marriage could render a second marriage void. This would
apply a definition of “married” currently accepted in criminal law
to a piece of civil legislation, and would have the effect of allowing
those with potentially polygamous marriages to contract actually
polygamous marriages in England and Wales.
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 91


This could then be extended, as the availability of some form
of polygamous marriage in the UK could then be the basis for
holding that a marriage which was monogamous at its inception
in England and Wales could become polygamous, applying the
reasoning in Attorney-General of Ceylon v Reid.
There would, however, remain the anomaly that actually
polygamous marriages contracted outside England and Wales by
those with English domiciles would be void, unless the courts
adopt a more creative approach to domicile. Were polygamous
marriages in England to be allowed, polygamous marriages abroad
may need to be considered by Parliament under the incompatibility
proceedings. This in itself may be enough excuse for the courts to
refer the whole matter to Parliament, rather than adopt a reading
of the law that would leave such an anomaly, although it is clear
the courts would not need to do this. It depends on whether they
consider the anomaly to be a meaning compatible with the
convention. This itself could depend on the facts of the case in
front of them. Clearly a case which sought recognition for an actually
polygamous marriage celebrated in England would not involve
direct consideration of paragraph (d) and therefore may be more
likely to result in the matter being resolved by the judges than by
Parliament. This is of particular interest because it may be
considered more difficult to steer such a change past Parliament.
Of course, allowing polygamous marriage does not dictate the
form under which it may be allowed to be polygamous. Given
that the law has indicated that a second marriage without the first
wife™s consent may be considered as unreasonable behaviour
sufficient for divorce, it may not be necessary to insist on any extra
element of such formal consent. It would of course be possible for
some formal consent to be given. A first wife could act as a witness
for future ceremonies, for example, but where there was no consent
it could be expected that a divorce would follow and that the matter
would resolve itself in that way. Hence, consent may be important,
without it needing to be a necessary precondition for a second
marriage. This would be an important issue to resolve because it is



6085-CHAP
92 SAMUEL CHAPMAN


one thing for the courts to allow polygamy by an appropriate reading
of the law, but another for the courts then to be drawn into
specifying the administrative requirements for validating the
polygamous marriage.
As has been demonstrated, there is more to the civil law than
the formal recognition of polygamous marriages for issues such as
matrimonial relief. There is also the issue of differential treatment
in benefits cases. Even without considering polygamous marriages,
it is clear that some rules treat those in a monogamous relation-
ship as if they were in a monogamous marriage, but do not treat
those in a polygamous relationship as if they were in a polygamous
marriage. However as some, if not all, of these benefits, place those
in a polygamous relationship in a more financially advantageous
position, it may be more likely that any challenge would originate
from an unmarried couple.
Public authorities may not act in a way incompatible with
the Act. This binds the police, the courts and Registrars of
marriages.
It could be applied by polygamists as follows. Police and pros-
ecution decisions could be open to scrutiny through the process of
judicial review by adopting the arguments above. If the person
could not be guilty of an offence, decisions about investigation,
arrest and prosecution could be reviewable, and so launching such
a review may be one of the most effective ways of getting these
issues before the courts.
The Benefits Agency could similarly be subject to judicial re-
view for not treating a polygamous family as married. This could
turn on differential treatment of monogamous unmarried couples,
or on non-recognition of common-law polygamous marriages,
which could rely on the arguments given above.
Registrars of marriage will generally not allow a ceremony to
proceed if an existing marriage is in place. Therefore, a judicial
review of a Registrar™s decision may be a safe way for a polygamist
to bring the issue of the criminal law before the courts, for it removes
the danger of being found guilty of a criminal offence.
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 93


Ironically, it may be possible for a polygamous family™s case to
be brought by one of the women who was not recognised as a wife
by the law, and this very non-recognition could assist in obtaining
Legal Aid, as she may have no property of her own, it being her
husband™s property held for the family as a whole. In this way the
state could fund the challenge to the law.
In these cases the scope for judicial review will depend on
whether the courts will consider whether the law has been changed
by the Human Right Act. If they will, then it has direct bearing
on whether the decision of a public official is “manifestly unrea-
sonable”. It is submitted that a decision to prevent a lawful cer-
emony would be unreasonable and so the issue of what the law is
should be considered, but it is difficult to predict the courts in
this regard. In addition to this the law of judicial review itself is
expected to develop due to the Human Rights Act, to incorporate
further consideration of the rights themselves and the principle of
proportionality.




6085-CHAP
CHAPTER 9“CONCLUSION
It is sometimes thought that polygamists in England are breaking
some law, but it has been shown that the practice of polygamy in
England and Wales is not, in fact, illegal. The act of cohabitation
with more than one marriage partner is not an offence in the United
Kingdom, unlike certain States in America, and there is no evidence
that it has ever been so. While the law has historically refused to
give formal recognition to more than one legal partnership
contracted in this country, it is clear that the law recognises foreign
marriages which allow polygamy, including those that are actually
polygamous and that are contracted by people who live, but are
not domiciled, in England. The law has had no provision for
recognising polygamous marriages by domiciled British subjects,
but it remains the case that the law recognises some polygamous
marriages.
Nor is it the case that polygamists breach the country™s bigamy
laws. It is clear that if they don™t use the legal formalities that
normally produce legal marriage, then they commit no offence. It
is also clear that if they do go through those formalities, but al-
ready have a potentially-polygamous marriage, that they still do
not commit an offence. In a very real sense the law has differenti-
ated between bigamy, an offence which appears to require decep-
tion, and the practice of polygamy, to the extent that many po-
lygamists could not be guilty of the offence of bigamy, even if they
tried.
The effect of the Human Rights Act must also be taken into
account. It has introduced much uncertainty into many areas of
law, transferring a great deal of power from Parliament to the courts.
There is, however, no real suggestion that it has made matters any



6085-CHAP
96 SAMUEL CHAPMAN


more difficult for polygamists. The only uncertainty is to what
degree the Human Rights Act has extended legal recognition of
polygamy. It is quite feasible, as has been discussed earlier, that
the Act will result in recognition of polygamous marriages con-
tracted abroad, possibly including those contracted by English
citizens on holiday, and that it will spell out the end of the bigamy
law except as a duplicate of the offence of deception that already
exists. Depending on how willing the judges are to apply the Act
it is possible that it will allow for polygamous marriages to take
place and be legally recognised within this country.
One of the most important questions will be how much legal
recognition continues to matter. With the decreasing use of the
legal institution of marriage within the population, with the law
and society making provision for relationships which fall outside
the traditional legal category, and with a taxation and benefits
system more concerned with the possession of children than the
possession of a marriage certificate, whether the law considers po-
lygamy as “marriage” may have all the practical impact of a scho-
lastic debate as to how many angels can dance on the head of a
pin. The less difference it makes, the easier it may be for judges to
make decisions which extend recognition of polygamy, especially
as they consider how the law came to be how it is, and what is
justifiable in the 21st century.
The law against bigamy was formed in the early 17th century
after a century of religious difficulty flowing from priest™s attempts
to treat polygamy as a sin. Instead of addressing the practice of
polygamy, it tackled the social issue of those who abandoned one
marriage for another. It did this at the expense of the power of the
established Church, and has been re-enacted with little debate
ever since. The courts have accepted that the offence requires an
evil intent in order to be committed, but there have been
considerable difficulties in interpreting the statutes, largely because
of the use of the term ˜married™ in two different senses. The courts
also seem to have accepted at some points that bigamy was not
designed to apply to polygamy, but to the degradation of the
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 97


marriage ceremony, often with deceit and in great offense to public
morals.
While doing this the law has moved from thinking of
polygamous marriages as completely different to monogamy and
unmanageable by the law, to something which needed to be
recognised and regulated. Problems and inconsistencies remain in
the recognition of some foreign polygamous marriages for some
purposes but not others, and the general denial to those who possess
an English domicile of the ability to have anything more than an
actually polygamous relationship.
This confusion has not been addressed due to the limited terms
of reference in the Law Commission reports, the piecemeal way
that reform has been handled, and the fact the basic legislation on
the constituent elements of bigamy has not changed at all in around
140 years, and has not changed in substance in almost 400 years.
Examination of the law has identified reasoning and assump-
tions which are sometimes contradictory and often open to ques-
tion in the light of social change since the time the laws were
originally formulated, and the only way the law has been able to
cope with it on the civil side is by extending recognition to mar-
riages that are polygamous in nature, but not in fact, and on the
criminal side by creative legal interpretation and the extensive use
of cautioning and light sentences for an offence that once carried
the death penalty.
The debate around how polygamy should be treated has not
really taken place, possibly because the law defined the limits of
socially acceptable behaviour, and because change to the law is
difficult to achieve without comprehensive backing. With the pass-
ing of the Human Rights Act a debate which for many years has
been restricted to religious circles, and which has not really devel-
oped on an academic or legal level is given the opportunity sud-
denly to leap to prominence by threatening to assess the law on
rational principles of how it treats the rights of its subjects.
It is not difficult to see that the law may be found wanting in
this regard, not because it should say one thing or another, but



6085-CHAP
98 SAMUEL CHAPMAN


because it has not developed in an orderly way and the justifications
of the past may not ring true in modern ears.
As police officers prove reluctant to prosecute bigamy where
there has been no deceit, and as courts prove reluctant to punish it
severely, the uncertainty introduced by the Human Rights Act
may take many years to resolve simply from there being a lack of
polygamists who wish to challenge the law. In common with a
growing section of the allegedly monogamous population, they
may not care whether the law recognises their relationship, and so
may not challenge it. Until they do, the English law will remain
shrouded in mist. It may be that the Human Rights Act has fully
legitimised polygamous marriages in the UK, but we may never
know the answer if polygamous families simply want to be left
alone. The English law interferes with the lives of polygamists less
than in some other systems, and it is tested less as a consequence,
but both these features are no doubt related to the historically low
incidence of polygamy in the population. Higher rates of polygamy
elsewhere have either led to persecution, as in the United States, or
to complete acceptance, and it will be interesting to see which
path the law follows during the supposed ˜inclusion™ of diverse
ethnic and social groups.
Minorities may no longer always be required to excise their
customs as they pass Customs and Excise, but the law has not
provided for those customs passing on to the next generation, or to
the indigenous population. The Human Rights Act has been jus-
tified as bringing rights home, but it may also finally have brought
home the problems and compromises of Empire and the difficulty
of deciding what morals are necessary in a democracy when the
morals of the majority are difficult to read.
RECOMMENDED FURTHER
READING
The main texts on UK law are the two reports of the Law
Commission, namely “Family Law Report on Polygamous
Marriages” (1971) No. 42: and “Law Commission & Scottish Law
Commission, Private International Law. Polygamous Marriages.
Capacity to contract a polygamous marriage and related issues”
(1985) (Law Com. No. 146) (Scot. Law Com. No. 96), both
available from Her Majesties Stationery Office.
For legal academics and practitioners there is David Pearl™s “A
textbook on Muslim Law” (1979) London: Croon Holn and his
“Family Law and the immigrant communities” (1986) Bristol:
Family Law, although as commented here, the Human Rights Act
may render much of this material dated.
Sebastian Poulter was prolific in this area, although the need
for repetition means that you don™t have to get all these texts to
read all his points. The texts in question are “Hyde v. Hyde“A
reappraisal”, (1976) 25 ICLQ 475; “English Law and Ethnic
Minority Customs” (1986) London: Butterworths; “Ethnic
Minority Customs, English Law and Human Rights”, (1987) 36
ICLQ 589; “African Customs in an English Setting”; Journal of
African Law; 31 [1988] 207; “A Separate System of Personal Law
for British Muslims?” in Mallat, C and Connors, J (eds.) Islamic
Family Law (1990) London: Graham and Trotman; and “Ethnicity,
Law and Human Rights: The English Experience” (1998) Oxford:
Clarendon.
Glanville Williams is worth reading, if only as a major figure
in the development of English Law. See his “Language and the



6085-CHAP
100 SAMUEL CHAPMAN


Law” (1945) 61 LQR 71 at 76-8; “Bigamy and the Third
Marriage”, (1950) 13 MLR 417 and “Venue and the ambit of
Criminal Law”; (1965) 81 LQR 395 at 402-4.
For a good and humorous introduction to economics in gen-
eral try David Friedman™s “Hidden Order”, (1996) New York:
HarperBusiness, which mentions polygamy, but for more detail
try “The Economics of Love and Marriage”, in his “Price Theory:
An Intermediate Text” (1990) South-Western; which is available,
for free, online.
For a well-researched and invaluable examination of examples
of polygamy and its defense within Christendom see John
Cairncross™s “After Polygamy Was Made a Sin. The Social History
of Christian Polygamy” (1974) London: Routledge & Kegan Paul.
This will lead you to Martin Madan™s “Thelyphthora” (1780) Lon-
don: J Dodsley, a spirited defence of the compatibility of polygamy
and Christianity, as is John Milton™s “De Doctrina Christiana”
(1825). This last work was unpublished during Milton™s lifetime
but translated almost 150 years later on the orders of King Will-
iam IV by his librarian, Charles Sumner, and published by the
Cambridge University Press as “A Treatise on Christian Doctrine”.
The text is missing from many editions of Milton™s Complete Works,
but the parts pertaining to polygamy are available online at http:/
/www.polygamypage.com
Moving beyond Christian to secular history you could try Foster
B, Foster M & Hadady L, “Three in Love: M©nages a trois from
ancient to modern times” (1997) San Francisco; Harper, although
this talks more of affairs than marriages, and for a widely respected
review of the Mormon experience you could do a lot worse than
Richard Van Wagoner™s “Mormon Polygamy, A History”
(1989)Utah: Signature Books.
1 JAC. 1. C. 11 OR “THE ACT
OF 1604”
An Acte to restrayne all persons from Marriage until their former
Wyves and former Husbandes be deade.
Forasmuch as divers 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 hus-
band or wife livinge, to the greate dishonour of God and utter
undoinge of divers honest mens children and others; Be it there-
fore enacted by the King™s Majestie, with the consent of the Lordes
Spirituall and Temporall, and of the Comons in the present Parlia-
ment assembled, That if any person or persons within his Majes-
ties Domynions of England and Wales, beinge maried, or which
hereafter shall marie, doe at any tyme after the ende of the Session
of this present Parliament, marrye any person or person, the former
husband or wife beinge alive, that then everie such offence shalbe
Felonie, and the person and persons so offendinge shall suffer death
as cases of Felonie; And the partie and parties so offendinge shall
receive such and the like preceedinge triall and execution in such
Countie where suche person or persons shalbe apprehended, as if
the offence had bene comitted in such Countie where such person
or persons shall be taken or apprehended.
Provided alwaies, That this Acte nor any thinge therein
conteyned, shall extende to any person or persons whose Husband
or Wife shalbe continuallie remayninge beyond the Seas by the
space of seven yeeres together, or whose Husband or Wife shall
absent hym or her selfe the one from the other by the space of
seaven yeares together, in any parts within his Majesties Dominions,



6085-CHAP
102 SAMUEL CHAPMAN


the one of them not knowing the other to be livinge within that
tyme.
Provided also and be it enacted by the Authoritie aforesaid,
That this Acte nor any thinge herein contayned shall extend to
any person or persons that are or shalbe at the tyme of such mariage
divorced by any sentence had or hereafter to be had in the
Eccliasticall Courte, or to any person or persons where the former
Mariage hathe bene or hereafter shall be by sentence in the
Eccliastical Courte declared to be voide and of no effect; nor to any
person or persons for or by any reason of anye former Mariage had
or be made, or hereafter to be had or made within age of consent.
Provided also, That no Attainder for this Offence made Felonie
by this Acte, shall make or worke any corruption of Blood, Losse of
Dower, or disinhersion of Heire or Heires.
9 GEO. IV. C. 31 (OFFENCES
AGAINST THE PERSON ACT
1828”SECT 22)
And be it enacted, That if any Person, 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
elsewhere, shall be guilty of Felony, and being convicted thereof
shall be liable to be transported beyond the Seas for the Term of
Seven years, or to be imprisoned, with or without hard Labour, in
the Common Gaol or House of Correction, for any term not
exceeding Two years; and any such Offence may be dealt with,
enquired of, tried, determined, and punished in the County where
the Offender shall be apprehended or be in custody, as if the Offence
had been actually committed in that County: Provided always,
that nothing herein contained shall extend to any Second Marriage
contracted out of England by any other than a subject of His
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 such Second Marriage, shall have
been divorced from the Bond of the First Marriage, or to any Person
whose former Marriage shall have been declared void by the
sentence of any court of competent jurisdiction.




6085-CHAP
OFFENCES AGAINST THE
PERSON ACT 1861”SECT 57
Whosoever, being married, shall marry any other person during
the life of the former husband or wife, whether the second mar-
riage shall have taken place in England or Ireland or elsewhere,
shall be guilty of felony, and being convicted thereof shall be liable
to be kept in penal servitude for any term not exceeding seven
years and not less than Three Years,”or to be imprisoned for any Term
not exceeding Two years, with or without Hard Labour; and any such
Offence may be dealt with, inquired of, tried, determined, and pun-
ished in any county or Place in England or Ireland where the offender
shall be apprehended or be in custody, in the same Manner in all
respects as if the Offence had been actually committed in that County or
Place ; . . . Provided, that nothing in this section contained shall
extend to any second marriage contracted elsewhere than in En-
gland and 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 such second marriage, shall have been divorced
from the bond of the first marriage, or to any person whose former
marriage shall have been declared void by the sentence of any court
of competent jurisdiction.
(Words in italics were later repealed by the Criminal Justice
Act 1925, s.49, Sch 3, and the Criminal Law Act 1967, s 10(2),
Sch 3, Pt III.)
MATRIMONIAL CAUSES ACT
1973”SECT 11
A marriage celebrated after 31 July 1971 shall be void on the fol-
lowing grounds only, that is to say . . . (b) that at the time of the
marriage either party was already lawfully married; or . . . (d) in
the case of a polygamous marriage entered into outside England
and Wales . . . either party was at the time of the marriage domi-
ciled in England and Wales . . .
For the purpose of paragraph (d) of this subsection a marriage
may be polygamous although at its inception neither party has
any spouse additional to the other.




6085-CHAP
PRIVATE INTERNATIONAL
LAW (MISCELLANEOUS
PROVISIONS) ACT 1995
5 (1) A marriage entered into outside England and Wales between
parties neither of whom is already married is not void under the
law of England and Wales on the ground that it is entered into
under a law which permits polygamy and that either party is
domiciled in England and Wales.
(2) This section does not affect the determination of the valid-
ity of a marriage by reference to the law of another country to the
extent that it falls to be so determined in accordance with the rules
of Private International Law.
Section 6 determines the effect of section 5 on prior marriages.
RELEVANT PROVISION OF
THE HUMAN RIGHTS ACT
1998
Schedule 1

ARTICLE 7 NO PUNISHMENT WITHOUT LAW

1. No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal offence
was committed.
2. This Article shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles
of law recognised by civilised nations.

ARTICLE 8 RIGHT TO RESPECT FOR PRIVATE AND
FAMILY LIFE

1. Everyone has the right to respect for his private and family life,
his home and his correspondence.




6085-CHAP
108 SAMUEL CHAPMAN


2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in 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.

ARTICLE 9 FREEDOM OF THOUGHT, CONSCIENCE AND
RELIGION

1. Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or
belief and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest one™s religion or beliefs shall be subject
only to such limitations as are prescribed by law and are nec-
essary in a democratic society 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.

ARTICLE 10 FREEDOM OF EXPRESSION

1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart
information and ideas without interference by public author-
ity and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television
or cinema enterprises.
POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 109


2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in 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,
or for maintaining the authority and impartiality of the
judiciary.

ARTICLE 11 FREEDOM OF ASSEMBLY AND ASSOCIATION

1. Everyone has the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form
and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights
other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public
safety, 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. This Article shall not prevent the imposition
of lawful restrictions on the exercise of these rights by members
of the armed forces, of the police or of the administration of
the State.

ARTICLE 12 RIGHT TO MARRY

Men and women of marriageable age have the right to marry
and to found a family, according to the national laws governing
the exercise of this right.




6085-CHAP
110 SAMUEL CHAPMAN


ARTICLE 14 PROHIBITION OF DISCRIMINATION

The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opin-
ion, national or social origin, association with a national minority,
property, birth or other status.

ARTICLE 17 PROHIBITION OF ABUSE OF RIGHTS

Nothing in this Convention may be interpreted as implying
for any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights
and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.

ARTICLE 18 LIMITATION ON USE OF RESTRICTIONS
ON RIGHTS

The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed.
ARTICLE 23 OF THE
INTERNATIONAL COVENANT
OF CIVIL AND POLITICAL
RIGHTS
1. The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and
to found a family shall be recognized.
3. No marriage shall be entered into without the free and full
consent of the intending spouses.
4. 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. In the
case of dissolution, provision shall be made for the necessary
protection of any children.




6085-CHAP

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