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 19^th 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