CHAPTER 4–THE CIVIL LAW AND PLURAL MARRIAGE

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There are a number of issues that must be considered with respect

to how the law treats plural marriage. There are the basic questions

of whether plural marriages have any consequences in English

law, what those may be, and how they came to be, and there

is also the intriguing question of what difference is made by a

marriage not being recognised at all.

In the area of Private International Law the courts generally

recognise marriages subject to a “dual domicile” test. This is the

approach favoured by the Law Commission, many writers and most

court decisions. This means that marriages will be recognised if

the marriage ceremony was legally capable of forming a marriage

where it took place (the lex loci celebrationis) and if the parties to

the marriage were free and able to marry according to the law of

their domicile (lex domicili). Both parts of this test are open to

debate. The first part does not adequately recognise the continuing

discussion of “common law marriage” which, if it takes place

anywhere, is more likely to take place in foreign countries where

normal English law does not reach, irrespective of local law. The

second part has been put differently by a number of judges, referring

to the law of the intended marital home,(Radwan v Radwan)

or the law of a place with which the parties have a “real and substantial

connection”, (Lawrence v Lawrence) or whichever of the

dual-domicile/marital home tests leads to the marriage being

recognised.(Also Lawrence v Lawrence)

Polygamous marriages also had a further hurdle they could

not clear, added by the decision in Hyde v Hyde and Woodmansee

 (1866) LR1 P&D 130. Mr Hyde had gone to Utah and married a

woman there, subsequently renounced the Mormon faith, and had

therefore been renounced in turn by his church and his wife, who

divorced him in Utah. This divorce was not recognised by English

law and Mr Hyde sought a divorce from his wife on the basis that

she had committed adultery by remarrying. His request was denied

by Lord Penzance, who said the court had no jurisdiction over a

polygamous marriage, which was a totally different institution from

“Christian marriage”.

This is significant not only in denying recognition to the marriage,

or because of the reasons that Lord Penzance gave, but because

it described Hyde’s marriage as polygamous, when in fact he

had only one wife, because it was entered into under a system

which allowed polygamy. Therefore, when Lord Penzance talked

of polygamous marriages being different, he meant that they

were different even if they only involved one husband and one

wife.

The reasons he relied on included that recognising polygamy

would cause problems because a second marriage would have to be

held adulterous, and this would be creating conjugal duties rather

than enforcing them. This showed that polygamy was a system

with which English law was not designed to deal.

He also believed it unfair to impose Christian standards of

treatment of wives on to men who had married under polygamy,

saying that polygamous wives did not stand on the same level as

their husbands, unlike in Christian marriages. He said that

polygamy was “revolting to the ideas we entertain of the social

position to be accorded to the weaker sex”.

He also based his decision on an earlier comment by Lord

Brougham in Warrender v Warrender (1835) 2 Cl & Fin 488 which

bears quotation in full:-“But marriage is one and the same thing

substantially all the Christian world over. Our whole law of marriage

assumes this; and it is important to observe that we regard it

as a wholly different thing, a different status from a Turkish or

other marriages among infidel nations, because we clearly should

never recognise the plurality of wives, and consequent validity of

second marriages, standing the first, which second marriages the

laws of those countries authorise and validate. This cannot be put

on any rational ground, except our holding the infidel marriage to

be something different from the Christian, and our also holding

the Christian marriage to be the same everywhere.”

Lord Penzance’s reasoning has been criticised in detail by

Poulter, who states that the courts would not need to hold second

marriages adulterous, as adultery is only committed between parties

who are not married. Poulter also suggests that Lord Penzance

appeared blind to Victorian laws which meant that women were

not held equal to men and that, in fact, in certain polygamous

societies, women probably got a better deal than in Victorian England.

And of Warrender he says that it was decided in 1835, and

that the Marriage Act 1836 recognised civil marriages without

any religious trimmings, therefore diluting the idea of “Christian”

marriage, to which Penzance referred.

This case denied matrimonial relief to anyone involved in a

marriage in a system that allowed polygamy. It did not extend

beyond matrimonial relief, and indeed in other matters courts began

to recognise polygamous marriages for various purposes. In

Srinivasan v Srinivasan [1946] P 67 the court recognised the first

marriage abroad in order to invalidate the second marriage in England,

as otherwise the man would be living with his lawful wife

in each country and this would encourage polygamy and not frown

on it. Barnard J. went on to state that “to deny recognition of a

Hindu marriage for the purpose in hand would, in my opinion, be

to fly in the face of common sense, good manners and the ordered

system of tolerance on which the Empire is based.”

But the decision in Hyde alone was sufficient to cause significant

problems, and to cause the courts to follow the rule where they

had to, but to take every conceivable opportunity to distinguish

the case. One of the more common ways for this to happen was to

hold, where possible, that a polygamous marriage had converted

into a monogamous marriage.

This was still less than satisfactory and in 1971 the Law

Commission published a report recommending the abolition of

the rule in Hyde. This recommendation was immediately taken up

and now forms part of section 11 of the Matrimonial Causes Act

1973, which allows a marriage to be recognised even if it is

potentially or actually polygamous.

The Law Commission gave detailed reasons for its recommendations,

namely that “to close the doors of all matrimonial courts

in England to either party to a polygamous marriage gives rise to

hardship and to a risk of a social problem which, in our view, the

law should not ignore.” The Commission believed the extent of

this problem to be such that following Hyde had caused judges to

be “compelled by ancient authority to come to a conclusion which

manifestly shocks their sense of justice.”

The Commission also said that family relationships validly

created under a foreign system of law should be recognised here,

unless there are compelling reasons of English Public Policy to the

contrary, explicitly recognising the point made by Hartley that

polygamous marriages serve the same social function as their monogamous

counterparts. (see his “Polygamy and Social Policy”

(1969) 32 MLR 155 and his “The Policy Basis of the English

Conflict of Laws of Marriage.” (1972) 35 MLR 571)

The Commission also said that “in the absence of compelling

reasons, it is undesirable that people should be regarded as married

for some purposes and not for others,” that people married

elsewhere should be protected by English law when they settle

here, and that the taxpayer shouldn’t lose out by maintaining the

wives of a man who could afford to maintain them himself.

The Commission noted that the reform also had the benefit of

extending divorce rights to Muslim women where these were denied

by their own country, and of rectifying the position where

the law allowed a husband to escape his responsibilities and gave

his wife no protection against this.

The report therefore suggests the reasons behind the statute

that abolished the rule in Hyde, but the rule change was limited

to marriages contracted by those with foreign domiciles. The same

section that abolished Hyde formulated a rule that made void a

potentially or actually polygamous marriage entered into outside

England and Wales if either party was, at the time of the marriage,

domiciled in England and Wales.

This latter rule was not recommended by the Commission

but resulted in many immigrant men who had returned to Pakistan

or Bangladesh to marry being advised that these marriages

were not valid in England.

This advice needed to be altered following the decision of the

court in Hussain v Hussain. Ormrod LJ held that “parliament, having

decided to recognise polygamous marriages as marriages for

the purpose of our matrimonial legislation, would think it right to

preserve the principle of monogamy for persons domiciled here.”

On this basis he said that if a man domiciled in England married

a woman in Pakistan the marriage was monogamous and recognised

by English law, because the husband’s personal law was English

law, which is monogamous, and the wife’s personal law was Islamic

law, which would not allow her to marry a second husband.

If the situation between the genders were reversed, the marriage

would be polygamous and therefore not recognised, because Islam

allows a man more than one wife.

Hussain v Hussain created an anomaly between the sexes, which

the Law Commission duly examined in their second report. The

Commission alleged that the court in Hussein had decided

Parliament’s intention against the weight of evidence in the

Parliamentary debates. They found no other area of law which

made a distinction between monogamous and potentially

polygamous marriages and, interestingly, noted the comment of

Sir Jocelyn Simon P in Cheni v Cheni [1965] P 85, 90 that “after

all, there are no marriages which are not potentially polygamous,

in the sense that they may be rendered so by a change of domicile

and religion on the part of the spouses”. The Commission therefore

recommended that a marriage should not be void because at its

inception it was potentially polygamous.

This recommendation was eventually incorporated into law,

via Part II of the Private International Law (Miscellaneous Provisions)

Act 1995, resulting in the current situation that both potentially

and actually polygamous marriages entered into by those

with “polygamous” domiciles are recognised as valid by English

courts, and that potentially polygamous marriages entered into by

anyone with an English domicile are recognised as valid by English

courts, leaving only actually polygamous marriages by those

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 monogamous

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 polygamous

marriage is recognised as constituting a bar to a subsequent

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 Marriages)

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 relationships.

‘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. However,

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

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

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 example

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 Secretary

of State is entitled to recover the expenditure from the husband.

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

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

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 conspiracy,(

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 monogamous

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 polygamous

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

sex” and therefore considered it unfair to enforce ‘Christian’ standards,

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 institutions.

But even though this is acknowledged, the law persists in

defining marriage as having two types, monogamous and polygamous,

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 domicile

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 constitute

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

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 legallyrecognised

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.