CHAPTER 5–COMPARISON OF REASONING AND IDENTIFICATION OF ASSUMPTIONS

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It is clear that both the branches of the law considered thus far

have been tackling different problems. The Criminal Law has been

largely attempting to tackle bigamy, whereas the Civil Law has

been trying to resolve issues related to the legitimacy of polygamy.

Marriages which involve deception of one of the parties by the

other as to their status are somewhat different in nature from those

entered into knowingly by all parties, but both areas of the law

impinge upon the practice or custom of plural marriage which is

the concern of this study, even where that practice does not involve

deception.

As the problems in each area of the law are different it is

reasonable to expect that the solutions will be different also, but it

is desirable that the law should flow from a common set of

principles, that it should be in some sense coherent, and that its

integrity should not be compromised by contradiction.

So far, this study has identified the reasons for the law

propounded by the courts and those who have influenced the

legislature. Before comparing the various reasons advanced, it is

worth considering how they relate to the public policy reasons

suggested by writers. Various writers, helpfully collated by Morse

in (1976) 25 ICLQ 229, have identified the following reasons for

justifying the criminal prohibition of bigamy:

Firstly, to discourage the procurement of sexual relations by

fraud, and the deceit involved. Secondly, to prevent the public

affront to the first wife and the risk of desertion and non-support

involved. Thirdly, to prevent confusion of the public system of

marriage registration. Fourthly, to punish deceit of those officiating

at marriage ceremonies, and finally, to protect religious feelings

of offence related to desecrating the marriage ceremony.

It is noticeable that, while some of these are mentioned in

cases as aggravating factors, only the last two appear to attract the

explicit support of the courts, and even these appear to have been

ignored by the courts in preventing a polygamous marriage from

forming the basis for a charge of bigamy.

Having earlier identified the reasoning that has explicitly supported

the law, it can now be examined for similarities of treatment,

and for differences, and to show any internal tensions. The

assumptions on which the reasoning rests can then be drawn out

for further comparison with research.

The first noticeable similarity in treatment of these issues is

that they began with at least some religious basis, and that this

basis was linked to some concept of Christian beliefs. The first Act

of Parliament which made bigamy a crime was passed to stop the

“great dishonour of God”, at a time when a Protestant state was

encroaching on the power of the Church, possibly to prevent or

limit any further turn towards Catholicism. It therefore incorporated

into the criminal law a concept from religion, and a similar

event is noticeable in the civil law which, in its early development,

is concerned with “Christian” marriage as opposed to “infidel”

marriages that it would not recognise.

The Civil law would not recognise polygamous marriages not

because it misunderstood them, but because it professed that it

did not understand them. Specifically, the only thing it would say

about them was that they were clearly a different thing from

“Christian” marriage, although courts now talk about

“monogamous” marriage instead of “Christian”. The Criminal Law

has treated polygamous marriages in a similar way, not recognising

them as constituting the first marriage in a prosecution for bigamy,

although there does not appear to be a case which established

whether they would count as a second marriage for that purpose.

Both areas of law have also needed to change tack with respect

to recognition. Both have made use of the idea of domicile in order

to change “polygamous” marriages into “monogamous” marriages,

and the civil law has gone further by formally recognising

polygamous marriages without them needing to change character,

as long as their polygamous nature is not confirmed by the actual

existence of more than one wife.

Similarly, both areas of law have been motivated by a desire to

address hardship, whether it be to prevent the “undoing of divers

honest men’s children” or to prevent spouses from evading their

responsibilities simply by changing their location, although the

application of the desire to prevent hardship has sometimes been

open to criticism, whether it be leaving Hyde with a limping

marriage, or for some time maintaining a clear gender-based

discrimination in the recognition of potentially polygamous

marriages.

Perhaps more importantly, both have involved what appears

to be a considerable latitude in statutory interpretation, whether

it be to import mens rea into an offence written in absolute terms,

or to redefine the general understanding of the law and the probable

intention of Parliament in order to legitimise at least some

marriages contracted by English domiciliaries abroad. No doubt

this tendency is encouraged by the statutes themselves not necessarily

having been clear in their motivations, whether because of

administrative re-enactment of ancient provisions in the criminal

law, or due to debatable understanding of the capacity to marry in

civil law.

And finally, this leads to a common problem of uncertainty.

The piecemeal and variable interpretation of the criminal law, and

the reliance on domicile by the civil courts have made it at times

difficult for the individual to appreciate how the law applied to

them. It is still not clear what the effect of actual polygamy would

be on a marriage now thought valid because of the Private

International Law Act 1995, and individuals may be unsure

whether they will be found to have changed their domiciles, and

therefore the status of their first marriages, for the purpose of the

bigamy law. Ignorance of the law may not be an excuse, but it may

be more easily understood when lawyers and judges also appear

unsure, and this extends to the related offence of perjury when one

describes one’s marital status to a Registrar.

There are also a number of areas where the treatment is different

in practice, despite judges and the Law Commission holding

similarity to be desirable.

The civil courts now appear to accept, following the Law

Commission’s reports and the enactment of some of their recommendations,

that polygamous marriages have a similarity in social

function and purpose to monogamous marriages. There is an internal

tension then in the refusal to validate actually polygamous

marriages anywhere by those with a domicile in England, and there is

a clear difference in the way the criminal law cannot base a conviction

on a polygamous marriage because such a marriage is different.

There is a further distinction in that the criminal law is interested

in whether a person is a British subject, wherever they are,

and is only interested in domicile to the extent that it helps indicate

whether a marriage is monogamous, whereas for the civil law,

domicile and location can be of extreme importance in determining

whether a marriage is valid, irrespective of whether the parties

are British subjects

A contradiction only recently resolved is that the old law in

Hyde v Hyde was clearly based on a desire to protect women, whereas

Hussain v Hussain resulted in direct discrimination against them,

and whereas Hyde refused recognition on the basis of society’s

conception that women were to be protected as “the weaker sex”,

modern commentators deny recognition because of a concern for

“equal rights”.

Finally, there is the internal contradiction between policy

statements and their effects. Foreign polygamous marriages are

recognised for some purposes in order to prevent public expenditure,

but on other occasions, and for all polygamous relationships entered

into anywhere by an English domiciliary, extra partners are treated as

single people, and the public purse refuses to take the benefit of the

economies of scale involved in recognising the relationships.

As noted above, both areas of the law assume a religious basis,

although modern practice has been to refer less to this and more to

monogamy. This reflects a past and continuing assumption that

“Christian marriage is everywhere the same” and specifically that

it is necessarily monogamous in character.

The criminal law clearly also assumes a great moral wrong for

bigamy, perhaps based on the religious assumption. As currently

understood, while some of this may refer to deception, this is not

a part of the offence in itself and need not be present. The one

deception apparently always present is not deception of an intended

spouse but “fraud of the law”, whereby the law and its

officers are deceived and where the marriage ceremony is used to

trick society at large.

This perceived moral wrong was linked in the past by judges

to other moral wrongs, such as fornication and seduction, and this

moral language has tended to be impressed on other methods of

description used by those judges, so that one talks of the

“prostitution” of the ceremony and another talks of the “wickedness”

of going through it. These morals are said to be those that “no-one

would hesitate to call wrong”, assuming a common moral

judgement and possibly a common foundation for morality.

Aligned to this is an assumption about public concern. The

law talks of scandal, outrage, and public decency. This assumes

that there is a strong common public opinion, and a common

appreciation of seriousness, and that bigamy involves a real

degradation of a valued ceremony. As it relates to the marriage

ceremony and ultimately to marriage itself, this is linked to

assumptions about the social centrality of marriage and traditional

family relationships, as exemplified by the concern that bigamous

marriages lead to illegitimacy.

There is also a basic assumption that there are two types of

marriage that are different, that the difference in quantity implies

a difference in quality. While the civil law has moved with regard

to potentially polygamous marriages, there are still occasions where

actual polygamy, whether a marriage or a relationship, is treated as

different, and the criminal law insists on seeing them as completely

different things, even when this does not assist with the policy

aims suggested for the law. This reflects, in part at least, some

assumption about a difference in purpose and function for two

different types of marriage.

There are also a set of assumptions related to gender. As detailed

above, this used to be described in terms of a “weaker sex” that

needed protection, but is now expressed as an assumption that

polygamy involves some form of oppression or unequal treatment

of women that amounts to sexual discrimination.

One of the most basic assumptions is the assumption of

monogamy. That involves a belief that polygamy is something

“altogether foreign to our ideas” and “practically unknown”, either

something that doesn’t happen much, may be happening less, or

at least doesn’t happen here. This is expressed not only in older

judgements but in modern statutory formulations that portray

the country as monogamous, and attempt to keep the practice of

polygamy outside the borders.

Finally, this is based around the assumption of state formulation

of personal law. The responsibility for dealing with bigamy was

taken from the church, and the job of registering births, marriages

and deaths followed later. The assumption that common law

marriage does not occur reflects this belief that marriage happens

with the active involvement of the state rather than as a contract or

agreement between two or more parties. This is noticeably different

both from countries that allow polygamy, which often ascribe

“family law” to various religious courts, and from those countries

more actively anti-polygamous, such as the United States, which

recognises common-law marriage in order to prosecute polygamous

practice as bigamy.