Barend Vlaardingerbroek: Polygamy’s prospects in Western society

One of the ‘slippery slope’ arguments often put forward by people opposed to same-sex marriage is that it will open the floodgates to other unorthodox marriage practices. “First, same-sex marriage; next, polygamy” is a dire warning we have all come across (probably many times). 

But what is the connection between the two? Frankly, there isn’t one.

Polygamy (which simply means ‘having several spouses’) takes one of two classical forms: polygyny (one man, more than one wife) and polyandry (one woman, more than one husband). (‘Bigamy’ is a legal term to describe an illegal second marriage in a monogamous jurisdiction.) Polygyny is by far the more common arrangement and remains widely practised under Sharia law and under customary law in many parts of the developing world.

Most Westerners equate polygamy with polygyny. Lesser-known polyandry is still found in parts of Asia where groups of close male relatives of the poorer rural classes pool their resources to acquire a shared wife. 

As thus defined, there is no connection between polygamy and homosexuality. Polygamy is just another form of heterosexual marriage – marriage between a man and a woman. What distinguishes it from monogamous heterosexual marriage is that the marriage contract does not preclude one of the two parties from concluding further marriage contracts with other partners.

Can Western law accommodate polygamy? The question has been raised in a number of Western countries with sizeable Muslim populations. Immigrant men come in with two or more wives all duly married to them under Sharia law, and some marry second and subsequent wives either abroad or at home, such as under the auspices of the thriving British Sharia court system. This creates a paradox in that “it violates the fundamental principles of our country that bigamy is illegal and yet polygamy is condoned and allowed to flourish”, as Baroness Cox of the House of Lords put it last year.

While British law does not recognise multiple marriages, neither does it forbid couples from entering into them outside British law, such as through a Sharia court. Hence a man taking on a second wife in this manner can’t be hit with bigamy. There has moreover been emerging a proxy official recognition of the wives of polygamous men in the UK as in other Western countries. In NZ, the Family Proceedings Act 1980 makes limited allowance for the recognition of polygamous marriage “where the law of the country in which each of the parties is domiciled at the time of the union then permits polygamy”, although this does not extend to recognising more than one legal spouse in NZ.

Should we amend marriage law to allow polygamy? Let me play Devil’s Advocate for a moment. There is nothing sacrosanct about monogamy – Western marriage law is monogamous because Roman marriage law was monogamous. Monogamy is a sick joke by its own defining criterion, which is sexual fidelity between two people. Polygamy in all but name has always been rampant among the upper classes of Western society in the form of illicit liaisons such as mistresses and ‘lovers’. The failings of marriage in our societies as indicated by the divorce rate and the popularity of ‘serial monogamy’, not to mention the high incidence of extramarital affairs, are in fact the failings of monogamy, not of marriage per se.

Getting polygamy accepted by mainstream Western society would be an uphill struggle, though. The public image of polygamy (in the form of polygyny) is sullied by its association with Sharia law and, especially in North America, with Mormonism. The Supreme Court of British Columbia in a 2011 case involving a Mormon community upheld the legal prohibition on polygamy, emphatically stating that “… harm arising out of the practice of polygamy … includes harm to women, to children, to society ..."

Strong words. But does polygamy necessarily ‘harm women’? A surprise finding of a 2013 study in the UK was that some youngish, educated Muslim women expressed a preference for the polygamous family structure whereby each wife lives separately as it gives them greater independence than does monogamy. The husband visits them once or twice a week, and the rest of the time they are left to their own devices, which is the way they like it – “I wouldn’t want him under my feet seven days a week” about sums it up. Coupled with the high degree of economic autonomy that married Muslim women enjoy, one could get really cheeky and argue that polygamy actually empowers women! And why should polygamy necessarily ‘harm children’ or ‘harm society’? Its much lower rate of family dissolution is surely a bonus with respect to the well-being of children and society as a whole.

The crux of the matter from a Western legal viewpoint is that polygamy as widely practised under Sharia and customary law involves men having more than one wife, but women do not have the option of having more than one husband – a discrepancy that is incompatible with the demands of gender equity that modern Western law espouses. In Refah Partisi v Turkey 2003, the European Court of Human Rights came down hard on Sharia law for being out of step with Western democratic values, alluding in this context to the legal status of women. So no way can Western law accommodate polygamy in the form in which it mostly occurs. Next bright idea, please.

OK then, you say, let’s allow for both sorts of polygamy – polyandry alongside polygyny. Why not allow both women and men to have more than one spouse, each marital relationship governed by its own marriage contract? That way, people can have their cake and eat it too, and everyone is afforded a degree of legal protection.

Sounds good (idyllic to some people, no doubt!), but there’s a major snag: this would destroy the family unit that traditional polygamy creates. The standard polygamous/polygynous family structure is centred on the husband with each wife and her offspring forming a sub-unit. Now take a situation where a second marital partner is an option for the wives. Which family would they and their kids belong to? This is not a trivial issue once we start looking at family law issues such as joint property ownership and inheritance rights.

To labour the point, the feasibility of conventional polygamy in terms of the integrity of the family unit is reliant on only one of the two sexes having a right to marry more than one partner – a restriction Western law can’t accommodate. Next bright idea, please.

At this stage, we could conceivably start talking about a form of group marriage – John, Jason and Jeremy all married to each of Jill, Jane and Julie and thereby forming a ‘superfamily’ – but that’s not polygamy any more as the textbooks define it. Not that I can see that model catching on in mainstream Western society either. Monogamy has one powerful thing going for it, which is the way it reflects the Western individualistic ethos. Most Westerners are not turned on by communal living – we’re too hooked on our privacy and our notions of private property (and the transmission thereof to our biological heirs, which would be a major fly in the ointment in this context).

Despite its many shortcomings, monogamy is deeply ingrained in the Western cultural, ethical and legal mindsets. Monogamy represents an ideal that most people continue to look up to as a standard-setter even if many can’t live up to it. Ironically and in direct contradiction to the ‘slippery slope’ argument introduced at the start of this article, monogamy can accommodate same-sex marriage while polygamy can not, at least not without ‘redefining’ it into something else such as group marriage. The future of monogamy as the sole marital arrangement in Western mainstream society and law seems secure.

Barend Vlaardingerbroek  BSc, BA, BEdSt, PGDipLaws, MAppSc, PhD is Associate Professor of Education at the American University of Beirut. Feedback welcome at bv00@aub.edu.lb .