CHAPTER 9–CONCLUSION

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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 already

have a potentially-polygamous marriage, that they still do

not commit an offence. In a very real sense the law has differentiated

between bigamy, an offence which appears to require deception,

and the practice of polygamy, to the extent that many polygamists

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

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 contracted

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 polygamy

as “marriage” may have all the practical impact of a scholastic

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

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 assumptions

which are sometimes contradictory and often open to question

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 marriages

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 passing

of the Human Rights Act a debate which for many years has

been restricted to religious circles, and which has not really developed

on an academic or legal level is given the opportunity suddenly

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

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 justified

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.