Same-Sex Marriage and Polygamy: Legal Plurality

1.  Aim

Pluralism is a main feature of Britain as a country, although this statement, as it will be demonstrated, suggests a theory and is not in itself a reflection of reality. There is ethnic pluralism. There is again, religious pluralism with Christianity, Islam, and other traditional religions Religious pluralism has compounded ethnic pluralism. This should therefore, given the multitude of cultures and religions suggest that there exists pluralism in relation to marriage as differing cultures should provide us with differing views and rules on what constitutes marriage and what the components of marriage are. Furthermore in the increasing liberal mindset of many Europeans and British people the incidence of same sex relationships raising interesting pluralism arguments. However it will be argued that this is not indeed the case and that legal pluralism does not sit easily as a theory of marriage in the modern UK constitution despite the increased incidence of differing views on what exactly constitutes marriage. It will be concluded that legal pluralism is not a valid theory and does not exist in relation to marriage in the UK. This assignment will demonstrate that state and community laws conflict greatly in the area of marriage. This assignment will explore the issues of same sex marriage and polygamy. Issues concerning relationships that are akin to marriage, such as where a couple reside together with their children, but are not married will not be discussed and are considered to be outside the remit of this paper.

2. Introduction

In his “Introduction to Sociology of the Family”, Durkheim (1888; 1975) cited three main sources for the study of marital relations: ‘law, customs known to us through ethnography and history, and finally family demography’. Indeed, law ‘presents a higher level of objectivity than customs, but, as it is in a more fixed form, it generally represents a more precious document’. He added that sometimes a time lag occurs, as law may change more slowly than customs. Today law is sometimes ahead of customs, particularly due to international pressure to democratise family law. And in fact ratification of the Convention on the Elimination of Discrimination against Women (CEDAW) as well as other international agreements led a number of states to review family rights as a way of signalling their integration in international order and world civilisation (Engle-Merry, 2003). The question thus arises as to whether law is becoming unrealistic, having more to do with an international façade or ‘gestures with no meaning’ (Banda, 2003), than a way to administer marital relations, which are often controlled by common law or even by religious regulations or customs.

3. Same Sex Marriage

Non-gay opponents to same-sex marriage often argue that the very concept is a contradiction in terms: marriage is, by definition, an opposite-sex relationship. A moment’s thought, however, will show how unsatisfactory this assertion is. Marriage, as an institution, is not a natural phenomenon but is rather a legal structure, and, as such, it is one that is defined artificially by the law. So the law has the choice of how to define marriage and how to limit access to it. Every society defines marriage in a way that makes sense for itself and for its own (economic) needs and different societies define it differently. Indeed, they change their definitions as time goes by, the better to reflect contemporaneous social values. For example, some elements of British society define it as a life-long relationship, escape from which is simply not possible, others accept the idea of divorce. Some members of British society define marriage as a relationship between no more than two persons; others define it to include polygamous relationships. The point is that there is no one, universally accepted, natural definition of marriage. It is entirely circular to say that marriage by definition is heterosexual because that is how marriage is defined.

Opponents of gay and lesbian equality often argue that marriage needs to be defended from same-sex attack because, as an institution, it is the basic building block of a settled and stable society. (Sullivan 1997) The limitations that UK law had on a man marrying his deceased wife’s mother were scrapped in 1986. (Marriage (Prohibited Degrees of Relationship) Act 1986)The limitations on interracial marriage were held to be no longer sustainable in the US in Loving v Virginia 388 US 1 (1967). All limitations should, in other words, be kept under constant review and the removal of one limitation does not in itself justify removing another. Today it is perfectly rational to say that the exclusion of incestuous and polygamous relationships continues to serve important social functions; while no purpose is served by excluding same-sex couples from marriage other than, self-referentially, the maintenance of the current definition.

Section 11(c) of the Matrimonial Causes Act 1973 provides that a marriage shall be void if the parties to it ‘are not respectively male and female’. Although this provision clearly allows no room for manoeuvre where same-sex marriages are concerned, it is noteworthy that when the question first arose in Corbett v Corbett [1971] P 83 the court considered the subsection equally applicable to a transsexual attempting to marry under her new sex. Furthermore, despite the fact that modern law now insists that the parties be ‘respectively male and female’-a phrase that is capable of being interpreted in a way that emphasises gender rather than biological sex, and thus would permit marriage involving transsexuals -the English courts have consistently stood by the restrictive Corbett interpretation. Furthermore, the approach in these cases has three times been vindicated by the European Court of Human Rights when faced with complaints by transsexuals that English law prevented them from entering into valid marriages.

It was held in Kjeldsen v Denmark (1979-80) 1 EHRR 711, AT 731 that the European Convention is an ‘instrument designed to maintain and promote the ideas and values of a democratic society’. These ideas and values, the court explained in Handyside V United Kingdom (1979-80) 1 EHRR 737, At 754, are ‘pluralism, tolerance and broadmindedness’. If we accept the legitimate combination of a flexible interpretation with the principles of pluralism and tolerance, it becomes apparent that the recognition of same-sex marriage within Article 12 cannot be ruled out. This is especially so in view of the fact that two European countries – the Netherlands and Belgium – have in recent years legislated to permit same-sex marriage. Nor is it irrelevant that the majority of countries within the European Union have now passed laws permitting same-sex registered partnerships, (Norrie: 2003) or that a later European instrument – the Charter of Fundamental Rights of the European Union – proclaims the right to marry in terms that make no reference to gender. Moreover, in Goodwin v United Kingdom (2002) 35 EHRR At Para 100, the European Court assumed that this omission of any reference to men and women was deliberate.

Against such a background, it may well be appropriate to revisit the interpretation of Article 12. Indeed, given the fact that there has never actually been a direct application to either the Strasbourg court or the Commission concerning the claim that Article 12 (either alone, or in conjunction with Article 14) confers a right to marry a person of the same sex, n61 there is at the very least an opportunity to test this claim. But what might this suggested reinterpretation of Article 12 look like? To begin with, and recalling the hugely increased legal recognition of same-sex relationships within Europe, it is at least arguable that Article 12 is fit to be interpreted as conferring a general right to marry, and that the mention of men and women refers simply to the fact that the right exists in favour of adults but not minors. The provision is certainly capable of being read this way in that there are no constraining words according to which a man has only the right to marry a woman (and vice versa). Let us suppose (not unreasonably) that same-sex marriage legislation will proliferate around Europe in the next 10-20 years. How then might we expect the next generation of law students to interpret this provision when they read it for the first time? To them, brought up in a Europe that widely permits same-sex marriage, is it not entirely plausible that the Article will be read according to the norm that marriage is confined to adults rather than the norm that marriage is purely for heterosexuals? In short, a major cause of the current tendency to give Article 12 a heterosexist interpretation is the fact that it is being read through culturally conditioned heterosexist eyes.

4. Polygamy

An important feature of Afro-Asian legal systems has been the continuing maintenance of systems of personal law since pre-modern times. These states tend to operate on the premise that, particularly in the realm of family law, the customary and religious law of the group concerned prevails, and generally governs the relations among members of that group. While state law has often intervened to regulate elements of these personal laws during the colonial and post-colonial periods, the latter still largely form the basis of the social and, therefore, legal order. (Hooker: 1975)

In such systems a larger zone of self-regulation among variously constituted ethnic communities is allowed. This situation has been described as ‘weak’ legal pluralism. (Griffiths: 1986). In this scenario, the state claims formal superiority through the ‘official law’, while allowing the maintenance of, and recognising the consequences produced by, subordinate legal orders. This approach is quite different to that prevailing in most Western unitary states which are characterised by state legal systems that generally claim an exclusive space for legal ordering, thus acknowledging minimal, if any, space for non-state ordering systems. They also tend to emphasise uniformity as a desired goal of legal development. This goal, as we see below, is ill-suited to the plural nature of Afro-Asian societies, and has also caused problems in accommodating Afro-Asian legal cultures that have been reconstituting in Western societies. The above characteristics of Afro-Asian legal systems, fundamentally different from Western legal systems, have had a crucial bearing on the former’s approach to the regulation of family systems that allow for polygamy.

In many Afro-Asian societies polygamy has been a long-standing practice that has often been recognised by the official legal sphere. Different states have adopted various approaches to its legal control, however, though few can be said to have achieved its outright abolition despite the modernisation euphoria that attended post-independence family law reforms. Among South Asian states, from which a large proportion of ethnic minorities in Britain originate, various approaches to legal regulation have been attempted. Modern Hindu law in India, which covers Buddhists, Sikhs, and Jains too, goes furthest in this respect and potentially criminalises it. Under the Hindu Marriage Act 1955 a second marriage may also be declared void. This has not prevented Indian courts from recognising the legal consequences of polygamy, however, as the full enforcement of the statute law is seen as often leading to injustice for the women and children concerned. In Pakistan and Bangladesh, Hindus continue to be regulated by Hindu personal law, which allows polygamy. The Indian Hindu legal provisions were also applied in similar form in Kenya and Uganda (though not in Tanzania) just prior to independence, with as yet unascertained consequences. On the other hand, the Muslim shari’a is recognised in India, permitting Muslim men to marry up to four wives, although the absence of statutory regulation in this area has not meant the absence of any control on polygamy and its consequences by the courts. In Pakistan and Bangladesh observance of certain statutory conditions prior to contracting a second marriage are stipulated by the Muslim Family Laws Ordinance of 1961. Non-compliance with these conditions does not result in voiding of the marriage, however, and judges have still had to grapple with the difficult position of first or second wives who reluctantly find themselves in polygamous situations. (Menski: 2001)

In all these South Asian jurisdictions polygamy continues to be observed as a social practice among Hindus, Muslims, and others. It is notable, however, that no state law, and arguably no customary, personal or religious law recognises an untrammelled power of men to take as many wives as possible and that there are some norms regulating the practice at different levels. This is especially so when the first wife objects to a second marriage or is effectively deserted without being accorded the rights of a wife or the dues owed to her consequent to divorce, or when a second wife is duped into believing that no prior marital relationship exists. On the other hand, despite the views of many commentators that an outright ban is the right or obvious course for South Asian countries, this may not in fact be the right approach. Although such legislation has been passed as a means of modernising Hindu law in India, and in Turkey and Tunisia, it has not absolved official fora from finding appropriate solutions to the plight of women and children and results rather in the practice ‘going underground’. n8 The uncritical acceptance of the view that polygamy has been legislatively ‘abolished’ in its countries of origin may be part of the explanation as to why there are so few reported cases in Britain on such issues concerning Hindus, Sikhs or migrants from Turkey.

In the English case of Prakasho v Singh [1966] P 233, [1967] 1 All ER 737 the neglected wife’s right of recourse to the court was resisted by the husband on the basis that their Sikh marriage celebrated in India had been entered into on the basis that it was potentially polygamous. In order to provide a remedy, however, the Divisional Court found it necessary to hold that the Hindu Marriage Act 1955, which had been enacted since the marriage took place, had converted the marriage into a monogamous one. While the judge’s action is understandable, in that he clearly saw that the potential polygamy issue was being raised only to defeat the wife’s claim, the case also ratifies the fiction that since the 1955 Act, Hindu, Sikh, Jain, or Buddhist marriages could only be monogamous. English law also criminalises polygamy under section 57 of the Offences Against the Person Act 1861. In R v Sagoo [1975] QB 885 a Sikh man from Kenya who was married prior to the adoption of the Indian-inspired legislation there in 1960, then married another woman in England. His conviction for bigamy was upheld on the basis that while his first marriage had been potentially polygamous, this marriage had been converted to a monogamous marriage as a domicile of choice had been acquired in England. Marrying again in England therefore laid him open to a charge of bigamy. Both cases therefore illustrate different ways in which pressure can be applied to drive polygamy underground

Since at least the late-nineteenth century English law has found the concept of polygamy difficult to deal with or even recognise for the purposes of disputes within its courts, which upheld a self-consciously Christian viewpoint, even in cases where parties had married under an overseas legal system that accorded recognition to polygamy. This reluctance to accord recognition or award relief in polygamy cases was in large measure due to the long shadow cast by the decision in Hyde v Hyde, in which Lord Penzance had declared that ‘marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of others’. This generally inhospitable attitude in English law towards polygamy has been seen more recently as ‘influenced by the rather condescending and intolerant attitude that was prevalent at that time towards Afro-Asian culture’.

It is rightly argued that immigrants to England are not in a privileged position and are expected to conform to English standards of behaviour. However, it seems to us that parties to polygamous marriages are more likely to conform to English standards if English law imposes on them, so far as is practicable, the same family rights and obligations as are imposed on other married people. The denial of all relief cannot achieve any change in the standards of behaviour of people who have made their home in England. On the contrary, denial of relief not only permits parties to escape from their obligations, lawfully entered into under another legal system, but tends to perpetuate the polygamous situation because the marriage cannot be ended.

The potential consequences of the developing social scenario, under an English conflicts law that was working itself into a corner, were brought to a head in the well-known case of Hussain v Hussain [1982] 1 All ER 369, (1983) 4 FLR 339 This case concerned a matrimonial dispute and involved a couple who were in a de facto monogamous marriage. They had married in Pakistan in 1979, and the wife later applied to the court for a decree of judicial separation on grounds of the husband’s ‘unreasonable behaviour’. The husband relied on Matrimonal Causes Act section 11(d) to deny that he was married at all, the marriage being potentially polygamous, an interpretation then in accord with the views of most commentators. The Court of Appeal, however, wisely disallowed him to rely on this specious reasoning, as he clearly appeared to have been married. The Court found that he could not possibly have been potentially polygamously married because, being an English domiciliary, his capacity to marry was governed by English law which only allowed monogamous marriages. He was therefore validly, though monogamously, married. The Court was also mindful of Britain’s ‘increasingly plural society’ and, had its decision gone the other way, Poulter observes that it would have had ‘widespread and profound repercussions on the Muslim community here’. Yet, the reasoning adopted by the Court of Appeal caused several academics and the Law Commission to comment on its potentially adverse or unclear implications.

The key issue therefore is symptomatic of a wider problem for English law (and, it seems, European private international law more generally), is that there is a continuing failure to distinguish between personal law and the relevant jurisdictional law. (Foblets & Strijbosch: 1999) When English domicile is established therefore a person is simply not regarded as capable of contracting into an actually polygamous marriage. The underlying message is that English law seeks to control a person’s personal law absolutely in such situations. Given then that the concept of domicile has been seen as the dominant determinant of capacity and that this concept itself is unwieldy and uncertain, this leaves room for all sorts of assimilationist assumptions or exclusionary agendas to be played out by discretionary manoeuvres in actual cases. Marginalising the essentially hybrid legal reality of migrants in such situations will frequently have an immigration bearing. Even in the Hussain type scenario, given the couple’s actually monogamous marriage, the attribution of English domicile to a Muslim man could still be read as a means of controlling his future freedom of action by barring him from contracting further valid marriages abroad altogether, thus obviating in advance the prospect of future settlement applications by a second wife and her children.

5. Conclusion

It has been demonstrated through the illustrations of same sex marriages and polygamy that in the area of marriage state and community conflict greatly. Western society should be dynamic and alert to the changing concepts of marriage and appreciate that in today’s diverse cultural society, marriage and life long commitment means different things to different people. The law as it stands conflicts greatly to what marriage means to many people. This means that the law and the community conflict greatly and that legal plurality does not exist in relation to this particular institution.

On the reverse side it could be argued that polygamy as it is “imported” from other cultures is in fact an outdated institution and it is its importation into English law that causes the conflict. This is to say that these practices come from other countries where society is not so diverse and is in fact far behind western concepts and that these ideals will eventually catch up with the western concept of marriage.

Although it has been argued that immigrants to England are not in a privileged position and are expected to conform to English standards of behaviour. However, it seems to us that parties to polygamous marriages are more likely to conform to English standards if English law imposes on them, so far as is practicable, the same family rights and obligations as are imposed on other married people. The denial of all relief cannot achieve any change in the standards of behaviour of people who have made their home in England. On the contrary, denial of relief not only permits parties to escape from their obligations, lawfully entered into under another legal system, but tends to perpetuate the polygamous situation because the marriage cannot be ended.

In relation to same sex marriage, it has been shown by the case of Kjeldsen v Denmark (1979-80) 1 EHRR 711, AT 731 that the European Convention is an ‘instrument designed to maintain and promote the ideas and values of a democratic society’. These ideas and values, the court explained in Handyside V United Kingdom (1979-80) 1 EHRR 737, At 754, are ‘pluralism, tolerance and broadmindedness’. And as has been demonstrated if we accept the legitimate combination of a flexible interpretation with the principles of pluralism and tolerance, it becomes apparent that the recognition of same-sex marriage within Article 12 cannot be ruled out. This is especially so in view of the fact that two European countries – the Netherlands and Belgium – have in recent years legislated to permit same-sex marriage. Nor is it irrelevant that the majority of countries within the European Union have now passed laws permitting same-sex registered partnerships, (Norrie: 2003) or that a later European instrument – the Charter of Fundamental Rights of the European Union – proclaims the right to marry in terms that make no reference to gender. Moreover, in Goodwin v United Kingdom (2002) 35 EHRR At Para 100, the European Court assumed that this omission of any reference to men and women was deliberate. Therefore in respect of single sex marriage it can be argued that society and the legal system do truly conflict and that moves should be made for the legal system to amend the rules to allow for the more diverse culture that now exists in society and in recognition of legal plurality.

Bibliography

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Statutes

• Hindu Marriage Act 1955
• Matrimonial Causes Act 1973
• Marriage (Prohibited Degrees of Relationship) Act 1986
• Offences Against the Person Act 1861.

Cases

• Corbett v Corbett [1971] P 83
• Goodwin v United Kingdom (2002) 35 EHRR At Para 100
• Handyside V United Kingdom (1979-80) 1 EHRR 737, At 754
• Hussain v Hussain [1982] 1 All ER 369, (1983) 4 FLR 339
• Kjeldsen v Denmark (1979-80) 1 EHRR 711, AT 731
• Loving v Virginia 388 US 1 (1967).
• Prakasho v Singh [1966] P 233, [1967] 1 All ER 737
• R v Sagoo [1975] QB 885