Polygyny and Canada's Obligations under International Human Rights Law
Customary international law is comprised of two elements: (1) consistent and general international practice by states, and (2) a subjective acceptance of the practice as law by the international community (opinio juris). This section of the report will focus on actual state practice. There are several sources one can look to as evidence of opinio juris. These include, but are not limited to, diplomatic correspondence, opinions of immigration offices, immigration laws and policies (particularly those within states including Canada that prohibit the entry of polygynous families), advisory opinions from Attorney-General's offices, decisions of immigration tribunals and welfare authorities regarding the support of children and subsequent wives, the degree to which states have prosecuted bigamy, Foreign Office opinions, and judicial decisions. Because polygyny is not yet addressed by most departments of foreign affairs as a pressing diplomatic issue, the types of international statements one can often find regarding other international human rights abuses do not yet exist in the case of polygyny.
This section of the report will focus primarily on decisions of national courts and statutory legislation as evidence of opinio juris that states feel obligated to prohibit or at least limit polygyny as part of customary international law. While criminal prohibitions of polygamy in many states including Canada were originally premised on the preservation of a Christian, monogamous definition of marriage, there seems to have been a shift in the rationale for such legislation given the more complete understanding of the harms of polygyny and the nature of patriarchy in recent times.
In proceeding with an international customary law argument, it is now acknowledged by many academic commentators that the general principles of equality and non-discrimination form part of customary law. This conclusion is supported by state practice and opinio juris, of which ample evidence exists from the past twenty-five years including State pronouncements by the international community at United Nations conferences, member states espousing their commitment to women's equality in various human rights treaties, as well as national jurisprudence and legislation enforcing gender equality. As Howland notes, the fact that some states continue to discriminate on the basis of sex should be treated as non-compliance with the international norm rather than evidence of a new rule.
Within this customary law framework of non-discrimination, this Part V will show that the dominant international trend in state practice is toward legislatively prohibiting or at least restricting the practice of polygyny. In several instances, even those states that traditionally permitted the practice on religious or customary grounds have introduced spousal and/or judicial permission requirements in conjunction with economic criteria before husbands can take subsequent wives. In addition, Part V will also examine the trend in African jurisprudence toward invalidating customary practices that are harmful to women through either a balancing approach or a repugnancy to natural justice approach.
Finally, while this report relies primarily on treaty and customary international law arguments, it also argues that the equality of all persons regardless of sex, race, religion, or ethnic background has become a “general principle of law.” In determining whether sexual equality, specifically equality within the family, is a “general principle of law”, international law looks to
“municipal law, public law, constitutional and administrative law, private law, commercial law, substantive and procedural law, etc.” Significantly, however, as Lord McNair has noted, the analysis of these various laws for this purpose should not be
“by means of importing private law institutions ‘lock, stock and barrel;' ready-made and fully equipped with a set of rules.” Rather,
“what international law can with advantage borrow from these sources must be from the viewpoint of underlying or guiding ‘principles.'”
In the South-West Africa Cases (Second Phase),Tanaka J. reasoned that general principles should not be limited to statutory provisions in national laws, but:
must be extended to the fundamental concepts of each branch of law as well as to law in general so far as these can be considered ‘recognized by civilized nations.'
Thus, Tanaka J. was able to find a general principle of non-discrimination on the basis of race through his observation that
“laws against racial discrimination and segregation [exist] in the municipal systems of virtually every State…” Moreover, he reasoned that because human rights are by definition applicable to every person,
“there must be no legal vacuum in the protection of human rights.”
Tanaka J.'s reasoning with regard to non-discrimination on the basis of race also translates to a requirement that human rights be protected regardless of sex. While this Part V will note that several states still permit polygyny, although often in a restricted form, this does not detract from a general international law principle of non-discrimination against women. As Tanaka J. noted, Art. 38(1)(c) of the I.C.J. Statute:
… does not require the consent of States as a condition of the recognition of the general principles. States which do not recognize this principle or even deny its validity are nevertheless subject to its rule.
Beyond international human rights treaty law, it is clear that customary international law requires the prohibition or at the least restriction of polygyny. Surveying state practice, it is evident that the majority of states prohibit the practice. Polygyny is banned as the crime of bigamy for all persons in the Americas, Europe, countries of the former Soviet Union, Nepal, Vietnam, China, Turkey, Tunisia, and Côte d'Ivoire, amongst others. While much of the legislation that prohibits polygyny in states including Turkey, Uzbekistan, Fiji, and others has its roots in colonial-Christian prohibitions such as the Napoleonic Code or British common law, it is significant that the ban on polygyny in Tunisia is based on an interpretation of Islamic law, specifically a recognition that the Qu'ranic requirement that all wives be treated equitably is impossible to achieve in practice.
Indeed, within the Islamic context in particular, there has been protracted debate about polygyny throughout the past century. Controversy regarding the practice within the Islamic world started in the early 20th century, as Egypt and the Middle East opened up to Europe. Modern religious reformers, led by Sheikh Muhammad Abdou, who died in 1905, called for restrictions on polygyny, citing it as unjust to women. Other reformers who advocated a complete prohibition pointed to the Qu'ran, verse 129 of Sura Nisaa, IV:
“Ye shall not be able to deal in fairness and justice between women however much ye wish” as well as Verse 3
“… but if ye fear that ye shall not be able to deal justly then only one [wife].” They argued that because this equal treatment requirement was impossible to achieve in practice,
only monogamous marriages should be recognized.
Religious fundamentalists responded by arguing that one must respect the Qu'ran's allowance of polygyny by distinguishing between the justice required in verse 3 (equality between wives in material conditions) and justice in verse 129, which would refer to inner emotions which no husband could control. For a time, fundamentalists in Egypt were able to stall legal reforms relating to the practice during the 1920s, 40s, and 50s. However, as Jamal Nasir notes, the trend within the Islamic context is now moving toward restricted polygyny if not outright monogamy as in Tunisia and Turkey.
In its 1992 report “Multiculturalism and the Law”, the Law Reform Commission of Australia considered whether changes should be made to existing legislation regarding polygamy. As the Commission noted, a marriage in Australia is not legally recognized if one of the parties is, at the time of the marriage, already lawfully married to someone else. Similarly to other jurisdictions, it is an offence (bigamy) in Australia for a person who is already married to purport to marry another person.
The Commission's report was commissioned following the 1989 release of the Australian government's policy statement on multiculturalism, the National Agenda for a Multicultural Australia. One of the policy objectives that guided the Commission's reasoning was the promotion of
“equality before the law by systematically examining the implicit cultural assumptions of the law and the legal system to identify the manner in which they may unintentionally act to disadvantage certain groups of Australians.” In pursuing this objective, the Commission noted that:
laws and policies based on one view or one set of assumptions about family relationships which do not take into account the diversity of family arrangements in Australian society may impact harshly on communities or individuals whose family relationships are differently defined.
The Commission heard submissions that drew attention to precisely this tension in Australian laws regarding polygamy. The argument was raised that the Commission'svery own principles should lead to a recognition of the relationships people choose for themselves within Muslim communities, for example. Particularly given that de facto rather than de jure marriages may be totally unacceptable in such communities, the Commission was urged to recommend legal recognition.
While the Commission acknowledged that within Muslim communities, polygynous marriages may be acceptable and that legally recognized marriages would be preferable to these groups, it found that
“recognising the legal status of polygamy would… offend the principles of gender equality that underlie Australian laws.” It went on to note that the majority of submissions it considered did not endorse the legal recognition of polygamy. To this end, the Commission did not recommend legislative reform that would allow polygamous marriages contracted in Australia to be recognized as legally valid marriages.
European civil law countries also have provisions prohibiting polygamous unions. In France, Belgium, and Luxembourg, Article 147 of their Civil Codes states
“On ne peut contracter un second mariage avant la dissolution du premier.” Similarly, according to Article 96 of the Swiss Civil Code:
“Toute personne qui veut se remarier doit établir que son précédent mariage a été annulé ou dissous.”
In the case of France, as noted above, immigration policy did not always accord with domestic law. Allowing and even encouraging polygynous immigration as a means of securing inexpensive post-war labour from Western Africa, Algeria and Morocco was a short-sighted policy that never ensured adequate social and economic protections for vulnerable wives. While domestic prohibitions of polygyny are a valid means for countries to normatively reject a harmful practice to women, they must be met with domestic legal protections, such as exist in Canadian family law, to protect those already in de facto polygynous unions.
In Canada, polygamy is an indictable offence under the Criminal Code of Canada with a maximum term of imprisonment of five years upon conviction. Under s. 293(1), every one who:
practises or enters into… any form of polygamy, or any kind of conjugal union with more than one person at the same time… is guilty of the offence.
The inclusion of the clause
“any kind of conjugal union” refers to some form of union operating under the pretext of marriage, and thus was not intended to apply to adultery even where one or both of the parties were married to another person at the time they were co-habiting. In addition to parties to polygamous unions, s. 293(1)(b) provides that everyone who
“celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction [polygamy]” is also guilty of an offence.
In the United Kingdom, polygamy is also prohibited. Under the Offences against the Person Act, 1861, persons convicted of the crime of bigamy may be subject to penal sentences of up to seven years. Section 57 of the Act states that:
Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years…
While the private international law dimensions of British law relating to polygyny in the immigration context have been considered by the European Commission of Human Rights in the Bibi decision discussed above, this domestic prohibition of bigamy has also faced increased criticism from Islamic groups within Britain. While there are no official statistics regarding the number of people in polygynous unions in the United Kingdom, media reports in 2000 estimated that there may be hundreds. With the entry into force of the Human Rights Act in the United Kingdom in 2000, the Muslim Parliament announced plans to challenge the domestic prohibition of polygamy under the European Convention's guarantees of the rights to respect for private and family life, as well as religious freedom. This challenge has not in fact materialized.
Like Canada, the United States has had to balance religious freedom guarantees with limitations of certain religiously-informed marital practices. In Utah, as in other states, polygamy is constitutionally and statutorily prohibited. Article III, Section 1 of Utah's constitution states that:
Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.
The Utah Criminal Code also provides that:
Here, there is clear legislative attempt to address de facto polygynous unions, which Canada has done by enacting a separate provision for the crime of “polygamy”, through the language
“purports to marry… or cohabits with another person.” In addition to this prohibition of bigamous unions themselves, another Utah statute also establishes criminal penalties for any state clerk who knowingly provides marriage licenses for prohibited marriages.
United States' jurisprudence on Mormon polygyny has recognized that although state law cannot interfere with religious belief, it may intervene where religious practices undermine the rights of others. In Reynolds, the Supreme Court noted that while laws
“cannot interfere with mere religious belief and opinions, they may with practices.” 
This reasoning was recently upheld in Bronson v. Swensen, in which the plaintiffs challenged the constitutionality of Utah Code Ann. § 76-7-101, Utah Const. art. III, § 1, and the Utah Enabling Act, ch. 138, § 3, 28, Stat. 107, 108 (1894), all of which prohibit the religious practice of polygamy by outlawing bigamy, polygamy, and plural marriage. The plaintiffs, which included a husband, wife and proposed plural wife, argued that the defendant clerk's refusal to grant a marriage licence (given that the husband was already legally married) violated their constitutional rights to free exercise of their religious beliefs, right of association, and their right to privacy, as protected by the First, Fourteenth, and other Amendments of the United States.
In his decision, Stewart J. made several important findings in ultimately holding Utah's prohibition of polygamy to be constitutional. Firstly, he noted that the state of Utah has
“a compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.” In recognizing that marriage is an expression of “bilateral loyalty,” Stewart J. found that the State was justified in enforcing its ban on plural marriage.
Secondly, Stewart J.'s decision echoed prior jurisprudence holding that Reynolds is still a binding authority on the issue of polygamy and the free exercise of religion. In addressing whether the Supreme Court's decision in Lawrence v. Texas that the State of Texas could not criminalize the petitioner's private homosexual activity should be read as sanctioning polygamous marriage, Stewart J. was careful to highlight the express boundaries of the Court's reasoning in Lawrence. Unlike the issue of polygamy, as practised in Utah and elsewhere, the Supreme Court explicitly stated in Lawrence that the case did
“not involve minors…[or] persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Moreover, Lawrence had not
“public conduct… [and did] not involve [issues of] whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In highlighting these important distinctions, Stewart J. ultimately found that though the State of Utah could not preclude private sexual contact between the plaintiffs, it could withhold recognition of a proposed plural marriage.
The Tunisian Code of Personal Status of 1956 not only adopted the Qu'ranic provisions in Sura IV, verse 3 as a legal condition precedent to polygyny, but went further by completely prohibiting the practice. Article 18 of the Code stated that the:
Plurality of wives is prohibited. Any person who, being already married and before the marriage is lawfully dissolved, marries again, shall be liable to imprisonment for one year or for a fine of 240 000 francs, or to both, even if the second marriage is not in violation of any requirements of this law.
To a great extent, the material requirement of equality set out in the Qu'ran was central to the reasoning of Tunisian jurists. In particular, they argued that because it was a practical impossibility in the modern socio-economic context to treat several wives impartially, the essential Islamic condition (of equal treatment of wives) was impossible to fulfill. In 1964, Tunisian legal reforms went further by invalidating polygamous marriages.
In addition to Tunisia, Turkey also prohibits polygyny. It first restricted polygyny in 1917, requiring the consent of the first wife to subsequent marriages. With the adoption of the Turkish Civil Code in 1926, the practice was banned completely. While it is believed that polygyny is still practised intermittently in Turkey, this is generally limited to rural areas or among the urban rich. In such situations, the second wife, the kuma, is married in a religious ceremony conducted by an imam and has no legal rights under Turkish civil law.
While regional trends in Africa, the Middle East, and Asia are increasingly toward restricting and even prohibiting polygyny, there are still some domestic legal systems that only minimally regulate the practice, typically through spousal notification requirements. In Jordan, for example, there are no obvious restrictions on polygyny, although wives are able to stipulate in marriage contracts that their husband is not able to take another wife, thus entitling them to sue for a divorce if the condition is not honoured. Similarly to Jordanian law, Moroccan law also makes a contractual allowance for wives. Moreover, marriage to a second wife is not permitted where the proposed wife is not aware that the man is already married. One sees similar notice requirements in Sri Lanka, where a husband is required to give notice of his intention to enter a polygynous marriage to the Quazi in the area where he lives, the Quazi where his intended wife lives, and the Quazi where his present wife lives. The Quazis are then expected to provide notice in all Jumma Mosques.
Egypt imposes similar notice requirements by mandating that a Notary Public notify the existing wife/wives of a new marriage by registered mail. In addition, one sees similar “divorce benefits” for women under Egyptian Act No. 100/1985, which entitles a wife who has not implicitly or expressly consented to her husband's remarriage to apply for a divorce if she suffers a moral or material injury that makes continued marital life difficult, even if she did not preclude a polygynous union in the original marriage contract. Significantly, however, a wife loses the right to apply for a divorce under these grounds one year after she has knowledge of the subsequent marriage. In addition to the present wife, if the new wife is not given notice that the husband is already married until after the marriage is performed, she can also apply for a divorce.
As legal systems in Indonesia, Pakistan, Bangladesh, Malaysia, and Singapore, amongst others, have moved to restrict polygyny, husbands are now increasingly required to obtain the permission of a governmental authority, court or quasi-judicial body to contract a polygynous marriage. In Iraq as of 2002, for example, judicial authorization was required before a husband could marry more than one wife. This judicial authorization was contingent on the husband being financially capable of supporting an additional wife as well as the existence of a legitimate interest for the subsequent marriage. The judge also retained the discretion to refuse to permit the subsequent marriage if he believed that the wives would not be treated equitably. Here, if a man contravened the rules, he was subject to a fine of 100 Iraqi dinars or a penalty of one year imprisonment.
While Syrian law is less categorical, there too judges have the power to forbid a married man from taking another wife unless there is legitimate justification and he is financially capable of supporting her. Along similar lines, Yemen's legislation allows men to have up to four wives (as per Shari'a law) if he can deal with them justly, or else he is limited to one. In order to enter into a subsequent marriage, there must be a lawful benefit, the proposed wife must be aware that the man is already married, the present wife must be notified that her husband intends to take another wife, and the husband must be financially capable of supporting more than one wife.
The “legitimate interest” or “lawful benefit” requirement for remarriage referred to in some of the above legal systems often centres on “defects” in an existing wife. These may include a present wife's absence from the country, her insanity, her inability to perform “marital duties”, her infertility, or the presence of physical defects or an incurable disease. Many of these “legitimate justifications” for remarriage stereotype women into reproductive or service roles by permitting subsequent unions when present wives are unable to perform these functions. In addition, as WLUML has articulated, systems that permit remarriage on such grounds typically do not allow women to seek a divorce on reciprocal grounds, illustrating the gender-bias often built into permission systems.
Finally, it is important to note that permission-based systems vary. Some systems provide for more robust notice and consent requirements for wives than others. Singapore, for example, requires that both the existing and proposed wives be consulted regarding their views on the proposed marriage. Muslim personal status law in India allows for a Muslim wife to
“stipulate for the power to divorce… in case of the husband availing of his legal right to take another wife.” Other legal systems, such as Indonesia, Malaysia, and Morocco focus more on the conditions the husband must fulfill, for example the financial capacity to maintain multiple wives. As WLUML have argued, however, such material requirements are often based on purely economic indicators and do not take into
account women's sexual and emotional needs. The final significant shortcoming of such permission-based regulatory systems is that the penalties for failing to follow the required procedure are often minimal and in some systems, including Bangladesh, Sri Lanka, Pakistan, and Malaysia, the subsequent marriage nevertheless remains valid.
In contrast to permission-based systems that apply equally to all persons, some domestic systems, particularly within the African context, operate under parallel judicial systems wherein the legality or recognition of a polygynous union depends upon whether one marries under civil, customary or Islamic law. CEDAW has strongly criticized parallel judicial systems that allow for polygyny. In its 1998 Concluding Observations on Tanzania, it noted with concern:
the fact that the prevailing customary laws and religious laws which sometimes supersede the constitution are discriminatory towards women. In particular, the Committee notes that several groups in the United Republic of Tanzania are entitled to practise polygamy. The Committee points out that customary laws and religious laws continue to govern private life and notes the critical importance of eliminating discrimination against women in the private sphere.
Where states such as Gambia, India and Nigeria, amongst others, recognize secular, religious and customary laws, couples can opt to be governed by any of them, depending on the form of the marriage. While these parallel systems seem to offer women a range of options (monogamy or a legal recognition of their rights as polygynous wives), WLUML has noted that these advantages are typically undermined by women's inability to determine which law they will be married under and whether or not their marriage will be monogamous. In this sense, men may be able to deliberately use parallel systems to their advantage. In Nigeria, men married under the Marriage Act, which prohibits polygyny, may have previously married or may subsequently marry under Islamic or customary laws with impunity.
The opportunity for men to use parallel legal systems to their advantage is particularly evident with religious laws. In countries including Sri Lanka, Gambia and Malaysia, where polygyny is banned under civil marriage laws or laws applicable to other communities, for example, men have converted to Islam to facilitate a polygynous union. Notably, however, an Indian Court rejected this type of argument in B. Chandra Manil Kyamma v. B. Sudershan, wherein a Hindu male converted to Islam to contract a second marriage against the wishes of his first wife. The Court held that because strict interpretations of both Islamic and Hindu tenets indicated that a second marriage while a first wife is still alive is discouraged, the second marriage was invalid and a religious conversion could not be used to justify it.
Beyond possible manipulation, dualist systems also raise the spectre that polygynous wives married under religious or customary law will be left without important civil law protections in their country. In Ethiopia, for example, formal marriage laws typically have little impact on most rural households, which adhere to religious, customary, and traditional practices. While the nation's Civil Code prohibits bigamy, the Ethiopian Constitution recognizes marriages entered into under religious or cultural laws. The wives of polygynous unions are thus left in a vulnerable legal situation because subsequent marriages are invalid under the Civil Code. Unless wives have some legal status under customary laws, they will lack any rights within the marriage.
The problems associated with such legal vulnerability have drawn considerable attention in Kenya where approximately 16% of married women are in polygynous unions sanctioned by customary or Islamic law. Within the Kenyan system, second wives are particularly vulnerable to State discrimination. Payments for national health insurance, for example, are normally taken out of a husband's salary for himself and his first wife. This means that subsequent wives' premiums are not automatically deducted, leaving them without coverage for health services. Moreover, because of their poor knowledge of the insurance system, husbands rarely ask for their second wife's premium to also be deducted. The 2000 Kenyan National Gender and Development Policy expressly recognized that marriage laws often negatively impact the rights of Kenyan women.
Within Anglophone Africa, customary marriages are still pervasive. In Zimbabwe, for example, they account for 82% of marriages. Significantly, however, several countries in Anglophone Africa are increasingly stressing the importance of consent in marriage, have increased their minimum age for marriage, and are moving toward formalizing customary unions.
Recent South African legal reforms are illustrative of efforts to address some of the transitional problems that arise during this formalization process. Unlike other domestic systems that permit customary law to trump statutory guarantees in the familial realm, South African law gives parties to customary marriages full legal status and the same rights and protections given to parties to civil marriages. With its 1998 Recognition of Customary Marriages Act, it moved toward restricting and, in the majority of cases, prohibiting polygyny. The Act states that if the initial marriage was solemnized under the Customary Marriage Act, polygyny is prohibited unless judicial approval is given with guarantees of equitable property distribution and assurances that there will not be “too grave” an impact on the affected family.
Within Francophone Africa, polygynous marriages are recognized in the majority of states. Côte d'Ivoire is an exception in prohibiting polygynous unions. There, polygamy is punishable by a fine of 50 000 to 500 000 CFA francs (US $79.59 to $795.54) or between six months and three years imprisonment. This punishment extends to cases of attempted polygamy as well as to the registrar or religious official who performs the marriage. Similarly to South Africa, Côte d'Ivoire has also addressed some of the transitional impediments to prohibiting polygyny by continuing to recognize polygynous marriages entered into before 1964.
For the majority of states in Francophone Africa including Benin, Cameroon, Chad, Mali and Senegal, however, polygyny is automatically permitted unless spouses initially indicate otherwise. In Chad, because there is no Family Code in force, marital rights are governed by several texts. The legislature has made polygyny the norm by requiring that spouses “renounce polygamy” at the time of marriage as per Order 03/INT/61 if their marriage is to be considered monogamous. Where this clause is violated, the marriage can be dissolved unilaterally at the wife's request without reimbursement of the bride-price. In contrast, the Civil Code allows only monogamous unions by not permitting a second marriage to be contracted without the dissolution of the first.
In addition to recognizing polygynous unions, Benin also recognizes polyandry (the union of a wife to multiple husbands). As noted by the Center for Reproductive Law and Policy (as the Center for Reproductive Rights was then known), negative health consequences are associated with such multiple unions, whether polygynous or polyandrous, given the AIDS pandemic in the African region and the manner in which polygamous unions facilitate the transfer of the virus between multiple spouses. Indeed in its 1998 concluding observations on Nigeria, CEDAW expressed concern about the lack of statistical information on AIDS and sexually transmitted diseases in the country and noted that
“polygamy and prostitution [are] serious risk factors in the spread of sexually transmitted diseases.” In this regard, parallel legislative schemes that permit or even default to polygyny perpetuate a practice that threatens the health of all partners involved.
- Date modified: