Sunday, August 6, 2017

Barend Vlaardingerbroek: Ireland and Canada grapple with polygamy


A few weeks ago, the Irish caught up with most of the rest of us when their Supreme Court recognised the first, but not second, marriage of a Lebanese man with two wives whom he had married under Sharia law, which is accepted as legitimate marriage law for Muslims by the Lebanese State.

The recognition of marriages concluded in outside jurisdictions is commonplace worldwide. As a rule of thumb, a jurisdiction will recognise the marriage of a couple where the State authorities of the jurisdiction in which they were married recognises them as being legally married, unless the marriage would have been disallowed in the jurisdiction being applied to. 

This is consistent with the principle of State sovereignty and each State’s right to set its own criteria for marriage while maintaining a State’s right to withhold recognition where that marriage would not be permissible under its own marriage law. In the case of applicants coming from polygamous jurisdictions, the obvious implication is that the first of a series of polygamous marriages will be recognised but not subsequent ones, as those later marriages would not have been allowed in a monogamous jurisdiction.

In this article, we will use the term ‘polygamy’ to mean ‘polygyny’ i.e. one man, more than one wife (cf. polyandry). Note that this eye-catching pic is misleading as it is rare for a man to marry more than one woman at a time in polygamous jurisdictions!

However, it is not so unusual for a man to emigrate with his youngest wife, leaving the earlier wife/wives in the home country to look after the family property/business etc. A variation of the aforesaid rule is accordingly to recognise the marriage to the first wife brought into the receiving jurisdiction regardless of whether she was the first of those to whom the man is married. This is UK practice. While strictly speaking that marriage to the younger woman would have been bigamous and thereby impermissible in the recognising jurisdiction, the authorities choose to overlook this potential complication. They make up for this judicious oversight by stopping at one: if an older wife joins the man later, her marriage to him will not be recognised even though it was earlier.

The alternative to extending recognition to couples from polygamous jurisdictions would be to treat de jure married couples as de facto at best – thereby effectively declaring any children they have as illegitimate – and demanding that they re-marry in the receiving jurisdiction. As well as being demeaning and indeed offensive from the point of view of those couples, it would be a slap in the face for the jurisdiction in which the marriage was concluded, and tit-for-tat reprisals would be likely (“You won’t recognise our marriages, so we won’t recognise yours”) – hassle we can all do without. In general, common sense prevails… usually.

But the Irish Attorney General’s office seems to suffer from a deficiency of common sense. They wanted to deny this Lebanese man and his first wife official recognition of their marriage because, in their view, the man had entered into that marriage without the intention of its being “to the exclusion of all others”, a standard cliché associated with the monogamous marital arrangement. Therefore, it was argued, even that first marriage would not have been kosher in Ireland, and so should not be recognised there now.

This line of argument strikes me as being doctrinaire and naïve. Many men who marry under polygamous law stick to having only one wife – they don’t want, or can’t afford, a second. To claim that this man entered into his first marriage with the express intention of subsequently entering into a second is presumptuous and prejudicial. A not entirely ludicrous analogy would be denying a couple from a high-risk-of-divorce group a marriage licence on the basis that they are entering into the marriage with the express intention of later divorcing and marrying someone else.

In their judgment, the Supreme Court reminded everyone that times had changed and that the classical understanding of marriage no longer held sway. (This is a country that recently embraced same-sex marriage, after all!!) Quite frankly, I regard the “to the exclusion of all others” mindset as belonging to an era in which people could not re-marry until the marriage had been dissolved for reasons of adultery or the spouse had died. For better or for worse, those days are long gone.

While there is no way that Western law could be amended to include de jure polygamy (see my article “Polygamy’s prospects in Western society”, Breaking Views 3 October 2015), we have to be honest with ourselves and acknowledge the fact that de facto polygamy is rife in our own ostensibly monogamous societies. Powerful men including royals and aristocrats (our supposed ‘betters’) as well as political figures and wealthy men have maintained mistresses since time immemorial, and a married woman doesn’t have to be called Anna Karenina to have a bloke on the side either. Among the hoi-polloi, truck drivers and travelling salesmen with a ‘wife’ in each town they frequent have come to light on occasion, and there are female parallels.

In the UK, there are thousands of polygamous families where men have married more than one wife under Sharia law. Those men are not prosecuted for bigamy because they did not try to marry those other women under English law, but at the same time social policy tacitly recognises those families.

There is nothing stopping me from starting some sort of commune and having a harem of women all of whom I call my ‘wives’ as long as it’s all consensual and we don’t try to deceive anyone about our marital status for purposes of gain. That brings me to the case in Canada against two elders of a Mormon sect who have just been found guilty of polygamy. The principal defendant had 24 ‘wives’. So what?

Winston Blackmore and some of his wives. I can understand why he wears a perpetual smile… and him a man of my age… sigh. As for those women, they hardly look like a miserable downtrodden lot, do they?

The ‘so what’ invokes the observation that some ‘wives’ were only 15 when they married him, although he swears that the parents had told him they were 16. But the age issue was a side-show. The Canadians have an anti-polygamy law and it was broken, so they couldn’t let things ride.

In having an anti-polygamy law, the Canadians have made a rod for their own backs. There is a world of legal difference between not recognising something and expressly forbidding it – in which case you have to go and chase it where it occurs. That opens up a Pandora’s Box. Polygamy isn’t just something some Mormons and Muslims do. Indigenous peoples are into it, as are various alternative lifestylers from communal cult members to patrons of swingers’ clubs. If they were to apply this law in spirit, they’d be up to their ears in cases for decades, and that’s just the backlog.

The argument put forward by the defence that polygamy is a facet of religious practice in this instance was tried and failed, but a constitutional challenge to Canada’s anti-polygamy law is now underway. The punchline is, of course, that in prosecuting these fellows, the State is violating their right to practise their religion – a maverick sect of the Latter Day Saints that rejects the church’s disavowal of polygamy way back in the late 19th century. Indeed, the charge that the State is victimising this particular Mormon splinter group seems difficult to dismiss out of hand. After all, it was the aversion to Mormonism of the mostly orthodox Protestant lawmakers of North America that prompted anti-polygamy law.

“I'm guilty of living my religion and that's all I'm saying today because I've never denied that,” Blackmore told reporters after the verdict. “Twenty-seven years and tens of millions of dollars later, all we've proved is something we've never denied. I've never denied my faith. This is what we expected.”  - as reported by ‘The Independent’ of 25 July

All this palaver has already taken a heavy toll on the public purse (it’s been going for almost three decades, for crying out loud) and there’s plenty more to come. What purpose is being served by it all? I for one do not go with the notion of the victimless crime. Who’s being hurt? If the answer is ‘nobody’, that’s the end of the matter as far as I am concerned.

Don’t get me wrong. I believe in marriage. I believe in commitment and fidelity. I’ve been with my missus for 43 years and neither of us has ever put a foot wrong in that respect. I don’t want a second wife. But I have a broader view of marriage than most Westerners. I spent much of my life in non-Western countries and I realise that marriage comes in various forms. Where it is culturally entrenched and socially accepted, polygamy – whether of the polygynous or polyandrous variety – does not irk me. Neither does a consensual arrangement between people in Western societies who form sexual liaisons with third parties, as long as there is no deceit involved. Whose business is it anyway?

The defining aspect of marriage to me is not the number of partners but heteronormativity. What sticks in my crop is changes to the law that allow a man to marry another man or a woman to marry another woman. It enrages me when people who do not bat an eyelid at same-sex marriage get on their moral high horse when it comes to polygamy, which is simply another form of heterosexual marriage that has been around for millennia (and which almost certainly pre-dates monogamy). We have here a fundamental discord with regard to the conceptualisation of what marriage as a sociolegal institution is about.

At any rate, let’s forget about the hypocritical moralising and just accept the polygamy in our midst as a lifestyle choice. As long as nobody’s being deceived or hurt, both the meddling do-gooders and the law should butt out.

Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is an associate professor of education at the American University of Beirut and is a regular commentator on social and political issues. Feedback welcome at bv00@aub.edu.lb 

6 comments:

Brian said...

Barend.

One comment.

Will we as a country have to pay for the children of both wives, and any more that might arrive by welfare benefits, should they land upon the State as genuine "Refugees"!

To this I must object we have enough being spent on welfare already!

Brian

Barend Vlaardingerbroek said...

Yes, Brian, we will, but if we let them all in we'd have to whether their marriages were recognised or not. Either way we pay. Better not let them in and avoid the issue, right?

paul scott said...

Its hard to be a second class citizen just because you're white.
I came over to Bangkok again, the Superannuation people said you must have a wife there.
They actually gave her a number, and reduced my Super { Half of the married rate] and said you will have to pay tax on it. This is true.
I wrote them a letter said I'm sick of that wife, I'm going to get another.
They wrote a very bad report down in there HIYA IT data spy system that travels to all Departments and is so loose it goes out to some individuals and to private companies.
Some nasty stuff went to Immigration NZ , they said you can't bring any of your wives to New Zealand, because the data system from Ministry Social Dystopia MSD say they are all whores.
This would never have happened to an Islamist.
I'm sacking Anne Tolley, Michael Woodhouse, and a lot of swamp dwellers in MSD.
Winston says he wants to do Bill English.
All true, you watch.

Anonymous said...

Barend,

The biggest issue as I see it is not bigamy itself but when the bigamy is sexist in that it is one man to many women only. This automatically creates a group of men who have no chance of a match. That tends to lead to social unrest as they have to get rid of the extra men for which war is a very effective tool.
As far as I am aware muslims and polygamous mormons operate a one to many system only. I'd say they must drop the sexism myself although I hate to imagine the issues of dealing with the legal ramifications of a many to many system in terms of divorce, property, children etc. Does NZ's Property Relationships Act only allow a single de facto?

Ray

Kit Slater said...

Surely the deeper issue here is a nation’s heritage, world-view and identity, one where monogamy, serial or otherwise, is the rule. Islam’s origins of violence and short life meant high fecundity was important. Now it’s a practice to facilitate both demographic and suicide bombing. Islam’s inflexible essentialism renders it unable to change its practices, but casuistry gets a free hand, aided by taqiyya. Why aid this by failing to rank polygamy as a very un-Western moral principle?

Polygamy devalues a woman's worth, it is not reciprocal in practice, it alienates the common man, lower-status men are denied access to life's most stabilizing and civilizing institution, it requires revision of many acts of parliament covering at least four UK government departments (Work and Pensions, Treasury, Revenue and Customs, Ministry of Interior), weakens the woman’s pre-eminent domestic role because it becomes subject to competition, and it weakens the concept of egalitarianism, since for the most part only older, richer or more powerful men are in a position to take advantage of it.

The habituation of flaccid moral principles, such as those weakening marriage, result in a reactive demand for rigid moral principles as society loses its moral authority. This leaves it open to the cancerous growth of a socio-politico-religious system offering inviolable rules of conduct. I would suggest that homosexual marriage, while weakening marital principles and gaining Islamic support for that reason, doesn’t have as great a deleterious effect on society, or produce as great a reflexive demand for extreme conservatism, as polygamous marriage does.

Worth checking out - doi: 10.1098/rstb.2011.0290 which considers monogamous marriage having been favoured by cultural evolution because of its group-beneficial effects.

Barend Vlaardingerbroek said...

Anon: 'Bigamy' is an offence that both men and women can be charged with, so there is nothing sexist about it. Polygamy is actually a gender-neutral term as well (it occurs as polygyny and polyandry, although the former is so predominant that it is equated with polygamy in common parlance).A "many to many system" (i.e. in which spouses of both sexes have the option of concluding more than one marriage) would not fall under polygamy but under polyamory. And yes, polyamory would be a legal nightmare!
Kit Slater: Polygamy is not of Muslim origin. Most ancient civilisations were polygamous and the overwhelming majority of customary marriage law in developing countries remains polygynous (one man, several wives). Interestingly, a major British study in 2013 (the AURAT study) indicated that a significant number of Muslim women prefer polygamy as it gives them more independence than does monogamy. You are right about polygamy being 'un-Western' and the Euro Court of Human Rights signalled clearly in 2003 that there was no way European law could accommodate Sharia polygamous marriage. Still, we need to be practical and recognise the fact that it occurs, and equivalate the first of such marriages of a man to a marriage within our own jurisdictions. Polygamous marriage is marriage by the heteronormative criterion, which in my opinion is the fundamental defining feature of marriage. By that criterion, SSM fails as 'marriage'.