CHAPTER 8–OPPORTUNITIES FOR CHANGE IN THE LAW

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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. Secondly,

complying with the Human Rights Act will occasionally

mean that other legislation should be construed according to possible

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 chapter,

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

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 residents

who do not have a British domicile may go abroad and contract

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

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 previous

chapter. It should be noted however that any reason justifying

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 compatible

with the arguments for that restriction that have been advanced

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 potentiallypolygamous

marriage (or, for ease of argument, an actuallypolygamous

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 potentiallypolygamous

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 nondiscrimination

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

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 Offences

Against the Person Act 1861. The vital elements are “Whosoever,

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 monogamous

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 second

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 monogamous

marriage. Were the courts to adopt this interpretation for

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 meaning

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

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 incompatibility

with the Convention, for reinterpretation would be possible.

Therefore for the law of bigamy to change, so that public

marriage ceremonies involving polygamists were no longer criminal,

would not need any reconsideration of the subject by Parliament.

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 legislation

governing the formal civil recognition of marriages is contained

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 returning

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

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 interpretation,

and the Private International Law Act 1995 ensured that

potentially-polygamous marriages would not be rendered void simply

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”.

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 actuallypolygamous

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 monogamous

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.

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

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 relationship

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 prosecution

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 review

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.

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 unreasonable”.

It is submitted that a decision to prevent a lawful ceremony

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.