CHAPTER 7–PLURAL  MARRIAGE AND HUMAN RIGHTS

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The Human Rights Act 1998 has applied in England and Wales

from 2 October 2000. It incorporated the European Convention

on Human Rights into UK law. It did not do this by constitutionally

enshrining the rights and giving the courts power to overturn

incompatible legislation. Rather it sought to affect interpretation

of existing laws where possible, identification and amendment of

existing legislation where incompatible, and to force Parliament to

consider compatibility in each new law it passes.

Section 3 of the Act provides that “So far as it is possible to do

so… legislation must be read and given effect in a way which is

compatible with the Convention rights.” This departs from the

tradition of construing texts in terms of the meaning that Parliament

intended. It is no longer a question of what a text actually

means, as a question as to whether it can have a meaning which is

compatible with the European Convention.

Where the courts cannot construe the legislation in a compatible

way they can make a declaration of incompatibility and, if a

Minister considers there are compelling reasons for doing so he

may, by Order, make the necessary amendments to legislation,

which need to be passed by both Houses of Parliament before

taking effect, although they do not have to go through the full

three readings and Committee stage in each House.

It is important to note that the rights are not absolute and

they may conflict. Competing rights have to be balanced and some

rights are qualified, allowing the state to breach them if it is “necessary

in a democratic society” for certain specified purposes, but

such breaches may only be proportional to the ends they seek to

achieve.

Furthermore, public authorities may not act in a way incompatible

with a Convention Right unless legislation gives them no

choice, and when Courts are interpreting convention rights they

must have regard for decisions made previously by the relevant

European bodies, such as the European Court of Human Rights

and the Commission, but it does not oblige them to follow those

decisions. Parliament remains supreme and the House of Lords

remains the highest court. However, the European Cour t has held

that states have a “margin of appreciation” which can entitle them,

because they best know local conditions, to some room for manoeuvre

in application of the Convention, and it is anticipated

that this will at least decrease, or perhaps be eliminated, when the

UK courts are entitled to decide cases on a Convention basis.

At the time of writing, it is not possible to cite any UK cases

decided under the Act for none have yet been made, but it is

possible to consider the potential areas under which claims could

lie, and the likely arguments that could be made.

With regard to the right to a fair trial enshrined in article 6, if

a man who has a potentially polygamous marriage cannot determine

whether his domicile has changed and therefore cannot determine

whether he is married for the purposes of bigamy legislation then

it may be doubted whether he can have a fair trial. It is one thing

for ignorance of the law to be no excuse, but when the application

of the law to any individual contemplating an act in full knowledge

of the law is uncertain, it may be difficult to demonstrate fairness,

or to demonstrate that the necessary intent was present. Therefore,

article 6 of the Convention could conceivably mean that those

with potentially polygamous first marriages may not be subject to

prosecution for bigamy involving a second marriage in England

and Wales. Certainly any man whose prosecution failed on this

point may find himself able to go through as many bigamous

ceremonies as he chooses, so long as he doesn’t make a change of

domicile more certain.

With regard to the right to respect for private and family life

enshrined in Article 8, there have been relatively few applications

to the European court on the subject of polygamy. What cases

there have been have been decided by the Commission rather than

proceeding to the full court.

In the case of M & OM v The Netherlands (Application 12139/

86) a Moroccan national and his father appealed against Dutch

immigration laws which denied the son a residence permit on the

basis that he was the son of a wife living in Morocco, rather than

the son of a wife living in the Netherlands. They complained of a

breach of article 8 (family life) in that the son could not stay with

his father in the Netherlands, and of Articles 8 and 14 (equal

treatment) in that the immigration policy discriminated against

the children of one wife on the basis of their place of birth.

The Commission held that its case law does not guarantee a

right to enter or reside in a particular country and that, as the son

was a non-dependent adult, no family life within the meaning of

Article 8 existed, therefore removing the basis for complaint. The

Commission made the following statements which are of interest

“When considering immigration on the basis of family ties, a Contracting

State cannot be required under the Convention to give

full recognition to polygamous marriages which are in conflict with

their own ordre public. This does not mean, however, that there is

no right to respect for the family life of a father and his children

born by different wives in a polygamous marriage.” The Commission

also mentioned that the Dutch restriction of entry to the

children of one wife only could “give rise to problems in relation to

minor children”.

In the case of E.A. & A.A. v The Netherlands (Application

14501/89), on very similar facts, the Commission also held that

the immigration policy was clearly related to the economic wellbeing

of the country, due to concerns about population density

and the labour market.

In the case of Bibi v the United Kingdom (Application 19628/

92) a daughter complained that her mother was being refused

entry to the UK on the basis that she was the first of two wives and

that the second wife had already settled in the country. The UK

government explained that UK policy is to prevent the formation

of polygamous households, “the practice of polygamy being unacceptable

to the vast majority of people in the United Kingdom”.

The complaint was of an infringement of the right to respect for

family life and that the mother had been discriminated against on

grounds of sex in that the law effectively allowed the husband to

choose which wife could join him.

The Commission again mentioned that its case law gave no

right of entry, even for married couples, but held that in this case

the refusal of entry interfered with the daughter’s right to respect

for family life. The Commission considered that the aim of the

legislation appeared to be “the preservation of the Christian based

monogamous culture dominant in that country” which was a legitimate

aim falling within the scope of protection of morals or the

rights and freedoms of others within the exceptions to Article 8. In

considering whether the interference was “necessary in a democratic

society” the Commission felt that States has a certain margin

of appreciation in the field of immigration policy, and that the

existence of the offence of bigamy for hundreds of years helped to

establish that polygamous marriages were in conflict with the UK’s

legal order, and so, in establishing an immigration policy the UK

could not be required to give full recognition to polygamous marriages.

The Commission also held that there was no sexual discrimination

by the UK, as the law was neutral as to gender and it

was only the father’s practice that was discriminatory, for which

the UK could not be held responsible.

From these cases it can be seen that a restriction in immigration

policy can interfere with family life where younger children are

involved, that the government relies on the practice of polygamy

being unacceptable to the vast majority of people in the country,

and that Article 8 gives no right of entry over immigration policy,

even for monogamous couples. Specifically, in areas of immigration

policy there can be no requirement to give full recognition to

polygamous marriages where they conflict with the Christian-based

monogamous culture evidenced by the bigamy law, as this is covered

by the protection of morals or the rights and freedoms of others,

and there is a clear margin of appreciation in this particular area.

The cases do not give much of a lead in areas apart from immigration,

where it is admitted there is a considerable margin of

appreciation, and it is not clear what the effect would be if the

flaws or interpretative fluidity of the bigamy laws (or their application

to polygamous practice) were challenged, or if the assumptions

about public objections or the Christian-based monogamous

culture were to be undermined.

Interestingly the point about sexual discrimination and Article

14 helps to meet the point raised about gender discrimination in

the previous chapter. Were the law to recognise polygamy for both

sexes, and it was only practised by men, on similar reasoning the

Government would not be responsible for the discrimination.

With regard to the right to freedom of thought, conscience

and religion enshrined in Article 9, this right is particularly interesting

in that it not only provides for the freedom to change religion

but also for the freedom to manifest, observe and practice

that religion. There are no ECHR cases that bear directly on the

question of polygamy in this regard, but it should be noted that

one of the main points is whether the exceptions to the right are

“necessary in a democratic society”.

The clearest reference to this concept is in the US courts’

treatment of polygamists, where the Supreme Court has ruled that

a Mormon polygamist could be punished for practicing polygamy,

even though his religion required it and the US Constitution

prevented laws prohibiting the free exercise of religion. The current

prohibition on polygamy is held in place because a “compelling

state interest” can proscribe religious actions even where it cannot

proscribe belief, and such an interest is established by the central

importance of marriage and the view that polygamy “fetters the

people in stationary despotism”, could not coexist with monogamy

and subverts democratic ideals.

This approach could provide a basis for a court to support

anti-polygamy laws as being “necessary in a democratic society”

but it is worth noting that it has come in for a great deal of criticism

for allegedly misrepresenting the intentions of the framers of

the constitution, (see Ryerson B, “Religious Freedom, Polygamy

and the Law”, available online) and for creating an unsustainable

distinction between belief and action. In particular, Elizabeth

Harmer-Dionne argues that the restriction on actions changed the

belief of the Mormon religion and so the restriction had a much

more powerful effect in reality than it appears to have on paper.

(see her “Once a peculiar people: Cognitive dissonance and the

suppression of Mormon polygamy as a case study negating the

belief-action distinction.” (1998) 50 Stanford Law Review 1193)

Points made elsewhere about interpretation in the light of

present-day conditions and the need for proportionality should be

noted here. It is clear that the law has allowed and recognised

polygamy to some extent. It may then find it difficult to argue

that its existence is subversive to democracy.

With regard to the right to freedom of expression enshrined in

Article 10, proponents of strong views of freedom of expression

will see the denial of recognition for polygamous marriages, together

with the prosecution of those polygamists who seek to attain

such recognition through use of civil wedding ceremonies, as

a denial of the validation which is part of free expression. Hence

denial of recognition of polygamy could be a denial of free expression,

but it would necessitate a strong view to be taken by the

courts, and there is as yet no evidence that such a view will be

taken.

Article 12, which provides that “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” is one of

the obvious candidates for any future arguments affecting the law

on bigamy and polygamy. This could feasibly be argued from two

points. Firstly the husband could argue that to prevent him from

marrying again was an encroachment upon his rights, discriminating

against him because of his marital status, contrary to Article

14. Alternatively the prospective second wife, who may actually

be living with the husband, could argue that her right to

marry was being encroached upon.

There are no specific exceptions to article 12, but there is the

qualifying clause about the national laws. There have been relatively

few full judgments on the right to marry and some guidance

can be obtained from these as to what this means.

In the case of Rees, a transsexual argued that UK law did not

give him a change in legal status along with the sex-change operation,

preventing him from marrying someone of the appropriate

gender as this would be a same-sex marriage. The Court held that

the right to marry guaranteed by Article 12 refers to the traditional

marriage between persons of opposite biological sex, and

that this was supported by the wording which made it clear that

Article 12 is mainly concerned to protect marriage as the basis of

the family.

The Court also held that the qualification “according to the

national laws” must not restrict or reduce the right in such a way

or to such an extent that the very essence of the right is impaired,

but that a restriction preventing marriage of those who are not of

opposite biological sex did not do this.

In Johnston and Others (Application 9697/82), it was argued

that Ireland’s refusal to allow divorce restricted a man’s right to

marry by removing his future capacity so to do, but the Court felt

that the ordinary meaning of the words “right to marry” covered

the formation of marital relationships but not their dissolution.

The express reference to “national laws”; meant that the Court did

not consider that, “in a society adhering to the principle of

monogamy, such a restriction can be regarded as injuring the

substance of the right guaranteed by Article 12.”

In the case of F v Switzerland (Ref. 21/1986/119/168) the

Court held that the use of a compulsory waiting period between

divorce and subsequent remarriage was a violation of the right to

marry. In so doing it held that the Convention must be interpreted

in the light of present-day conditions and that the field of

matrimony was “closely bound up with the cultural and historical

traditions of each society and its deep-rooted ideas about the family

unit.” The Court also held that, given that the potential new wife

was “neither under age nor insane, her rights were in no way

protected” by the waiting period, and that an unborn child could

have been adversely affected by the prohibition, not because of the

law but because of prejudices that would result in social handicap.

The state was found to have used disproportionate interference to

pursue a legitimate aim, and therefore lost the case.

In the Cossey case, which was another transsexual case,

differentiated by the presence of a man willing to marry Cossey,

and the going through of a void ceremony of marriage, the Court

ruled that “as regards Article 12, whether a person has the right to

marry depends not on the existence in the individual case of such

a partner or a wish to marry, but on whether or not he or she meets

the general criteria laid down by law”, and found that “attachment

to the traditional concept of marriage provides sufficient reason for

the continued adoption of biological criteria for determining a

person’s sex for the purposes of marriage, this being a matter

encompassed within the power of the Contracting States to regulate

by national law the exercise of the right to marry.”

From these cases it can be seen that the phrase “according to

the national laws” cannot be used as a carte blanche to impair the

very essence of the right. This essence has been interpreted with

reference to cultural traditions, to a social adherence to the acceptance

of monogamy, and specifically to the continued adoption of

biological criteria for determining a person’s sex for the purposes of

marriage. Indeed, in the transsexual cases, the courts were pointed

to the judgment in Hyde v Hyde to establish the nature of marriage

as “the voluntary union of one man and one woman for life”.

But balanced against these considerations is the need for the

Convention to be interpreted in the light of present-day conditions,

that the transsexual cases reflect the wording of marriage as the

basis for a family, and that when children are made illegitimate (as

they also are by non-recognition of polygamy) there is the possibility

that the state restrictions are disproportionate to the aim. Also it

could be argued by analogy that a prospective polygamous wife’s

rights are not protected by a ban on polygamy as long as she is

“neither under age or insane” and therefore that she can decide

what to do with her rights in these matters. Also if the existence of

the right to marry does not depend on the existence of a person

she could marry, it may be difficult to argue that the right is being

denied to a potential wife of a polygamist on the ground that she

could marry someone else.

Finally, it is to be noticed that there are potential crossovers

between this subject and the area of same-sex marriage. Were samesex

relationships to be accepted as marriages this could sufficiently

undermine the traditional conception of marriage to increase the

chances of recognition of polygamy. Were they instead to be

recognised in a registered relationship seen as broadly equivalent

to marriage, but not actually as marriage, what would there be to

stop a first wife from marrying a second, entailing many of the

consequences of legal recognition of the polygamous unit?

Where the rights mentioned above are capable of being

restricted it is only for certain defined purposes. For the right to

private and family life (Article 8) these are “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.”

For freedom of thought and religion (Article 9) these are “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.”

For freedom of expression (Article 10) these are “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.”

According to Article 14 the enjoyment of the rights and freedoms

in the Convention shall be secured without discrimination

on various grounds including “other status”. Article 17 prevents

the limitation of the rights to a greater extent than is provided for

in the Convention and Article 18 confines the restrictions so that

they may only be applied for the purpose for which they have

been prescribed.

Those reasons for restriction which are most likely to arise in

the context of polygamy may be identified as protection of health

or morals, and the protection of the reputation or rights and

freedoms of others.

The protection of health could only be offered with evidence

that polygamy provided some risk to health that would otherwise

not exist. As the alternative is not only monogamy, but also the

whole variety of sexual morality prevalent today, it is not easy to

see how polygamy may be especially risky. Concerns about sexually

transmitted diseases would concentrate on a plurality of partners,

but as polygamous systems also emphasize fidelity, they are not

significantly more likely to encourage the spread of disease. There

would be a need to show that there was something about polygamy

that was harmful, and indeed, so harmful that the law should

intervene to protect people from their preferred choice. Is such

evidence exists, it is not widely publicised, and runs contrary to

the conclusions of those like Altman and Ginat (in “Polygamous

Families in Contemporary Society” (1996) Cambridge: Cambridge

University Press).

The protection of morals would of course depend on the

preservation of the moral of monogamous marriage, which the

European Court has recognised (in Bibi v UK). However, it seems

that there has been no great argument over the morals involved. It

is far from clear in law that public morality should be Christian, or

that Christian morality should be monogamous. This would be

the protection of the morals of some people, but not others, and

the protection of morals would need to be interpreted in the light

of modern conditions. This would include a backdrop of a largely

non-monogamous society. There may be no substantial

monogamous morals to preserve.

The “protection of the reputation or rights and freedoms of

others” is then the remaining justification for a restriction. Clearly

the addition of a new partner has an effect on an existing partner’s

rights and freedoms, and so, following the ruling on divorce and

unreasonable behaviour, where there is a lack of consent it could

be seen that this justification could have substance. It is not so

easy to see how this could extend to situations where consent was

present, as then the law would be insisting on granting “freedoms”

which were unwanted. The possible exception to this relates to

whether consent can properly be determined while a relationship

subsists. In short, how could the courts tell if a woman freely consented

to her husband marrying another woman, or whether she

only did so under great pressure, such as a threat of divorce? Therefore,

the Crown could argue that in order to protect those who

would be so pressured it would be necessary to ban everyone from

being polygamous, but it is not clear that this is a proportionate

and effective way of obtaining the goal. It would be like saying

that no-one should be allowed to marry or to divorce, for some

may have been pressured into it.

Any restriction based on the above purposes can only be adopted

where necessary in a democratic society. If there is another available

method for obtaining the same goal, but which does not violate

the Convention, or if the purpose makes the restriction only

desirable, and not necessary in a democratic society, then the case

is not established. And should a case be established, the degree of

restriction must also be proportionate to the purpose under the

Convention. The existence of polygamous relationships in democratic

societies without legal sanction is an obstacle to establishing that

the restriction of polygamous marriages is necessary. The use of

“democracy” to restrict polygamy in the United States would be

different for two reasons. Firstly, there the law actively includes

polygamous relationships as banned behaviour by defining them as

a form of marriage, so there is a legal sanction. Secondly, it appears

that Mormon polygamy may have been a threat to democratic

government, not because it was polygamy, but because it was a

manifestation of the power of a religious alternative to government

in a frontier society. As that threat no longer exists, the argument

that only monogamy can be allowed if democracy is to survive is

no longer credible.

In addition, any argument that the non-recognition of polygamy

was required would fall foul of the fact that the law already

recognises certain polygamous marriages, and has done so for many

years without apparent threat to health, morals or democracy.

In conclusion, it is clear both that a number of convention

rights have the potential to impact on the legal treatment of polygamy

and that the precise way in which they will be translated

into law is not predictable. However, the passing of the Human

Rights Act offers an opportunity to identify and test the reasoning

and assumptions behind the law in the courtroom, and to account

for social change since the laws were passed, and while the little

legal analysis that there has been has tended to briefly exclude

polygamy on the basis of women’s rights, it seems clear that this

will not be done so easily as there are a number of points to be

considered by the courts before a judgement can be made.

The Convention, by limiting the scope of restrictions to the

rights seems to assist the polygamist’s case, if a right can be identified

as being involved in a particular set of circumstances. The

identification of such circumstances and the rights involved are

necessarily speculative before any English cases exist, but they do

illustrate the potential for challenge.