Polygamy and the Law

Introduction…

(for the latest coverage of legal issues and polygamy on this site click here)

Polygamy is a lifestyle, not a crime. Even in the Western world it is rare for the practice of polygamy to be a crime, and in those few places where it is (such as Canada and a small number of US States), there is usually enough of a risk that the law would be declared by a Court to be itself unlawful that prosecutors are reluctant to bring charges. Convictions for polygamy are therefore exceedingly rare, and often restricted to those who can also be prosecuted for other offences.

In most of the world currently, as for most of recorded history, polygamy is legally recognised as a legitimate form of marriage. In some countries it is not currently possible to form a polygamous relationship that is legally recognised as a marriage, but even these areas have to find a way of dealing with polygamous marriages that have been legally formed elsewhere, and so overtly monogamous systems may formally recognise some of these marriages.

A number of legal systems have a crime called ‘bigamy’, which leads many people to believe that the practice of polygamy is criminal. Bigamy usually involves someone who has a legally recognised monogamous marriage seeking to be engaged in another legally-recognised monogamous marriage at the same time. Consequently, bigamists are normally involved in deceit, either of an intended marriage partner, or of the legal system, or both, and can be seen to be distinct from polygamists.

Very rarely, a legal system may ban the practice of polygamy, even where the people involved are consenting adults aware of the nature of the relationships, and who do not intend for the legal system to recognise all of their marriage partners as legal spouses. Confusingly, the name of this offence is different in different areas. In some places it is called ‘polygamy’, in others ‘bigamy’, although both the usages are unusual. In a number of areas where this is the case such laws are subject to challenge for being unconstitutional, or a breach of human rights, and the law in this area is developing. The question as to whether these laws are lawful is often keenly appreciated by prosecuting authorities, who seek to avoid courts overturning them, and so prosecutions for the practice of polygamy are rare.

Find more information below on the legal issues around polygamy generally, or the situation in different areas around the world.

United Kingdom

The UK is important as bigamy has been a crime in England and Wales since the 1603-4 session of Parliament, and its laws have impacted on many former British colonies, such as the United States, Canada and Australia.

In the United Kingdom the practice of polygamy is not criminal. In England and Wales for instance, the crime of bigamy requires a monogamous existing marriage and an attempt to form another monogamous marriage. Living a polygamous lifestyle without registering more than one marriage does not constitute a crime.

The English legal system recognises marriages in other countries that allow polygamy, as long as all parties to the marriage are domiciled in such an area when the marriage is formed. Anyone with an actually-polygamous marriage would not have the right kind of existing marriage to support a charge of bigamy, and so proper polygamists cannot commit bigamy, even if they try to! However, successive governments have shared a policy on immigration that seeks to prevent the formation of new polygamous households, with varying degrees of success.

United States of America

In many parts of the United States, polygamy can lawfully be practised, as the crime of bigamy is limited to those who have a monogamous marriage and who seek to form another monogamous marriage.

In some states, polygamists fall under the definition of bigamy. In Utah it is sufficient to “purport” to be married to more than one person, and so the State with the most polygamists is ironically one of the few States where it is illegal. However, State authorities are open that their policy is not to prosecute polygamists unless there is another crime to prosecute at the same time, and there are significant questions as to whether these laws are constitutional, especially given the recent treatment by the US Supreme Court in the case of Lawrence v Texas of laws governing private sexual acts. Consequently, Kody Brown, star of reality TV-show ‘Sister Wives’, with the help of University of Washington Constitutional Law Professor Jonathan Turley, is seeking to challenge the right of Utah to enforce such laws if they wanted to.

Canada

The situation in Canada is more complex. For example, in British Columbia the Criminal Code has separate provisions against ‘bigamy’ and ‘polygamy’, where the latter covers the practice of polygamy and not just the registration of marriages. Complaints about perceived abuses at a polygamous community in Bountiful, B.C., have led to repeated considerations by the authorities as to whether the polygamy ban was compatible with the Charter of Rights and Liberties. An abortive attempt to prosecute two polygamists was ruled unlawful by the British Columbia Supreme Court because the province’s Attorney General had engaged in “prosecutor shopping”, whereby he repeatedly engaged a series of special prosecutors until he found one who said that polygamy could be illegal. This has resulted in a Constitutional Reference to the British Columbia Supreme Court, involving over 3 months of evidence and argument on the subject, and a ruling is expected in late 2011, although it is likely to be appealed.

Recommended Reading

Chapman S A, Polygamy, Bigamy and Human Rights Law (2001) Xlibris.com – This book concentrates on the development of the English criminal and civil law related to plural marriage, and the consequences of the Human Rights Act for polygamists in the United Kingdom, especially in the light of developing social conditions. The book has been cited in international research on polygamy, and referred to in the British Columbia Supreme Court in the 2010-11 Polygamy Reference Case in Canada, where the book was entered into evidence as an exhibit and relied upon both by those arguing for decriminalisation of polygamy, and those seeking to maintain polygamy as a criminal offence. Now available on the Amazon Kindle at Polygamy, Bigamy and Human Rights Law or Buy direct from the publishers.

Forbes S, “Why Just Have One?”: An Evaluation of the Anti-Polygamy Laws under the Establishment Clause (2003) 39(5) Houston Law Review 1517

Ryerson B, “Religious Freedom, Polygamy and the Law” – Good review of some US law, available online

Polygamy On Trial – the Case of Tom Green

Polygamy legally recognised in South Africa

State Statutes Affecting Polygamy

Site including relevant Utah Laws

Mormon History, Polygamy and the Law Iinformation on the current legal status of polygamy in the US.

http://indegayforum.org/articles/corvino59.html (some of the opposition to using “gay rights” to argue for “poly rights”)

http://indegayforum.org/articles/boaz2.html (an interesting suggestion that marriage should be privatised)

Polygamy Reference Material

Andrews J A, “A Licence for Bigamy?”; [1963] Crim. L.R. 261 – Commentary on English court decisions

Badawi JA, Polygamy in Islamic Law (undated); American Trust Publications – Pamphlet in Islamic views

Bartholomew G, “Polygamous Marriages and English Criminal Law”; (1954) 17 MLR 344 – Commentary on English court decisions

Bradley M S, Kidnapped from that Land: The Government Raids on the Short Creek Polygamists (1993) Salt Lake City: University of Utah Press

Burke J, “Muslim fights to make three wives legal”; The Observer newspaper, London; 20 February 2000, available online

Chambers D L, “Polygamy and Same Sex Marriage”; Hofstra Law Review, 26(1) available online

Chapman S A, Polygamy, Bigamy and Human Rights Law (2001) Xlibris.com

Now available on the Amazon Kindle at Polygamy, Bigamy and Human Rights Law or Buy direct from the publishers.

This book concentrates on the development of the English criminal and civil law related to plural marriage, and the consequences of the Human Rights Act for polygamists in the United Kingdom, especially in the light of developing social conditions. The book has been cited in international research on polygamy, and referred to in the British Columbia Supreme Court in the 2010-11 Polygamy Reference Case in Canada, where the book was entered into evidence as an exhibit and relied upon both by those arguing for decriminalisation of polygamy, and those seeking to maintain polygamy as a criminal offence. Includes the text of relevant legislation such as the Bigamy Act of King James.

Cox D T, The Law as a Mediator of Identity Conflicts; unpublished; formerly available online; any new address would be appreciated.

Forbes S, “Why Just Have One?”: An Evaluation of the Anti-Polygamy Laws under the Establishment Clause (2003) 39(5) Houston Law Review 1517

Hall J C, “Common Law Marriage”; (1987) 46(1) Cambridge Law Journal 106 – Comments on English Law related to Common Law Marriage

Harmer-Dionne E, “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 – Argues against the belief-action distinction to show that US Supreme Court decisions interfered not only with actions but led to a change in religious belief

Hart H L A, Law, Liberty and Morality (1963) London: Oxford University Press – Comments on English law

Hartley T C, “Polygamy and Social Policy” (1969) 32 MLR 155 – Comments on English law

Hartley T C, “The Policy Basis of the English Conflict of Laws of Marriage.” (1972) 35 MLR 571 – Commentary on English court decisions

Law Commission, Family Law Report on Polygamous Marriages (1971) No. 42: HMSO – Comments on English law – out-of-date

Law Commission & Scottish Law Commission, Private International Law. Polygamous Marriages. Capacity to contract a polygamous marriage and related issues (1985) (Law Com. No. 146) (Scot. Law Com. No. 96): HMSO – Comments on English law – out-of-date

Leslie R D, “Polygamous Marriages and Bigamy”; (1972) 17 Juridicial Review 113- Comments on English law

Lucas P, “Common Law Marriage”; (1990) 49(1) Cambridge Law Journal 117 – Comments on English law

Malik Zubeida, “Polygamy law set for challenge”; BBC News Online; 18 June 2000; available online

Morse C G J, “Polygamists and the Crime of Bigamy”; (1976) 25 ICLQ 229 – Comments on English law

Parker S, Informal Marriage, Cohabitation and the Law, 1750-1989 (1990) London; Macmillan – Comments on English law

Pearl D, A textbook on Muslim Law (1979) London: Croon Holn – Law in various Islamic countries – some comments may now be out-of date

Pearl D, Family Law and the immigrant communities (1986) Bristol: Family Law – Comments on English law

Polonksy M, “Polygamous Marriage: A Bigamist’s Charter?”; [1971] Crim. L.R. 401 – Comments on English law

Potter R, I Wed Three Wives: The polygamy story of Royston Potter (1996) Utah; Pioneer Press – experiences of a Utah police officer discovered to be a polygamist

Poulter S, “Hyde v. Hyde – A reappraisal”; (1976) 25 ICLQ 475 – Comments on English law

Poulter S, English Law and Ethnic Minority Customs (1986) London: Butterworths – Comments on English law

Poulter S, “Ethnic Minority Customs, English Law and Human Rights”; (1987) 36 ICLQ 589 – Comments on English law

Poulter S, “African Customs in an English Setting”; Journal of African Law; 31 [1988] 207 – Comments on English law

Poulter S, “A Separate System of Personal Law for British Muslims?” in Mallat, C and Connors, J (eds.) Islamic Family Law (1990) London: Graham and Trotman – Comments on English law

Poulter S, Ethnicity, Law and Human Rights: The English Experience (1998) Oxford: Clarendon – Comments on English law

Ryerson B, “Religious Freedom, Polygamy and the Law” – Good review of some US law, available online

Soothill K, Ackerley E, Sanderson B & Peelo M, “The place of bigamy in the pantheon of crime?” Med. Sci. Law (1999) 39 (1) 65 – Lancaster University academics arguing that the profile of bigamy offenders and the treatment of the courts show that Bigamy, if it is to continue as a crime, should be classified in England as a deception offence, and not as a sexual offence, as it is currently for statistical purposes.

Williams G, “Language and the Law” (1945) 61 LQR 71 at 76-8 – Comments on English law

Williams G, “Bigamy and the Third Marriage”; (1950) 13 MLR 417 – Comments on English law

Williams G, “Venue and the ambit of Criminal Law”; (1965) 81 LQR 395 at 402-4 – Comments on English law