Polygamous marriage

Nature, capacity to marry and case laws

Submitted to: Prof. Rabia Illyas

Submitted by: salma akram
Roll no: 15091624-059
LLB(Hons)10th Semester(Morning)
subject: conflict of laws
School of Law, University of Gujrat  
 Table of content

1.1 Introduction…………………………………………………………………..03
2.1 Legal status of polygamous marriage in different countries…………………03
3.1 Nature of polygamous marriage………………………………………………04
4.1 Change in nature………………………………………………………………04
5.1 Recognition in polygamous marriage…………………………………………06
6.1 Capacity to marry a polygamous marriage in England………………………..07
7.1 English law provisions…………………………………………………………07
8.1 Case law: Hussain v Hussain…………………………………………………..08
9.1 Nullity of marriage…………………………………………………………......09
10.1 Conclusion…………………………………………………………………..10
Polygamous marriages

Polygamy is a late Greek word “Polygamia” which means:

“State of marriage to many spouses”

1.1 Introduction:

There are a number of countries in the world which permit polygamy. In broad terms, a
polygamous marriage is a marriage under which a man is permitted to take more than one wife.
To be more accurate, where a man may have more than one wife, the marriage is said to
polygamous; where the wife may have more than one husband, the marriage is said to be
polyandrous. However, because the latter is rare, it is normal to refer to both situations as
polygamy.

Definition:

“Polygamy is the act of marrying multiple spouses, that means having more than one
husband or wife at the same time.”

The term is the opposite of monogamy which is the more common practice of having just one
spouse at any given moment.

Forms of polygamous marriages

There are three forms of polygamous marriages and which are following:

 Polygyny
wherein a man has multiple simultaneous wives
 Polyandry
wherein a woman has multiple simultaneous husbands
 Group marriage
wherein the family unit consists of multiple husbands and multiple wives of legal
age.
2.1 Legal status of polygamous marriage in different countries
Polygyny is legal I n 58 out of 200 sovereign states. Majority of them are Muslim countries and
in which man is allowed to marry only 4 wives at a time.

 In Pakistan polygyny is legal but man can have only four wives at a time.
 In Lebanon, Malaysia, Philippines and Singapore polygamy is only legal for
Muslims.
 In Nigeria and South Africa, polygamous marriages under customary law and for
Muslims are legally recognized

Polygamous marriage in United Kingdom

Polygamous marriages may not be performed in the United Kingdom, and if a polygamous
marriage is performed, the already-married person may be guilty of the crime of bigamy under
the s. 11 of the Matrimonial Causes Act 1973

3.1 Nature of polygamous marriage

 the nature of the marriage was not influenced by the fact that the husband did not
exercise his right to select a second wife, a potentially polygamous union was in
the same position as an actually polygamous marriage
 the court would normally seek to identify the nature of the marriage at the time of
its inception
 it is for the Lex loci Celebrationis to determine the nature and incidents of the
union and then for English law to adjudge whether the union is monogamous or
polygamous
 the nature of the marriage is not determined by the personal law of the parties
 the nature of a marriage is not determined by the procedures available for its
dissolution
4.1Change in nature

A polygamous marriage can be change into monogamous by the change of domicile or through
habitual residence. a potentially polygamous marriage may become polygamous if the parties
acquire an English domicile. It can be explained well through following example:
a couple domiciled and marrying in Ireland, where divorce was restricted, can change the
dissolubility of their marriage by either of them becoming domiciled or habitually resident in
England and, thus, obtaining access to the divorce jurisdiction of the English court so a marriage
originally polygamous or potentially polygamous, can become monogamous.

 Before passing of Matrimonial Causes Act 1972

a potentially polygamous marriage had been converted into a monogamous one if the parties
have recourse to the English matrimonial law.

 Case laws in support of change in nature

1. The Sinha Peerage Claim
the court accepted that, where the husband had joined a Hindu sect that practiced
monogamy, that was sufficient for the potentially polygamous marriage to be
regarded as monogamous.
2. Parkasho V Sing
where the potentially polygamous marriage was regarded as monogamous after the
Hindu Marriage Act 1955 prohibited the husband from taking further wives
3. Ali V Ali
as illustrated by the judgment in Ali v Ali, where the facts were as follows: H and W
entered a potentially polygamous marriage in India. In 1961, H acquired an English
domicile and W left him. H petitioned for divorce on the grounds of desertion. W
cross-petitioned on the basis of H’s adultery since 1964. The jurisdiction of the court
at that time depended on whether the marriage was monogamous or not.
Cumming-Bruce J held that the court had jurisdiction. The learned judge considered
that, by acquiring an English domicile, the husband had agreed to submit to English
matrimonial law and its restriction upon taking a second wife during the subsistence
of the marriage. Such conduct, the judge considered, was sufficient to confer upon the
marriage a monogamous character.
 A monogamous marriage at its inspection does not change its status
a marriage that is monogamous at inception does not change its status even though the
husband may subsequently go through a polygamous ceremony of marriage
 case law: AG of Celon V Read
a. facts of case
Alan and Edna Reid contracted a monogamous Roman Catholic marriage in 1933. In
1957, the parties ceased living together. In June 1959, Mr Reid converted to the
Muslim faith. In July 1959, he was married by the Registrar of Muslim Marriages to
one Fatima Pansy. In 1961, he was charged with bigamy.
b. judgment

The Privy Council upheld the judgment of the Supreme Court of Ceylon in quashing
the conviction for bigamy and, in doing so, impliedly recognized that the second
marriage was a valid polygamous marriage. The Privy Council accepted the
argument of counsel for Mr Reid that:

i. the second marriage was a valid marriage by reason of compliance with

personal and religious law
ii. from the perspective of Mrs Reid, the conduct of her husband was adultery,
entitling her to a dissolution of the first marriage.

Such a set of facts could not arise in England, although the status of the first marriage is
important because intercourse with a second wife under a polygamous marriage will not
constitute adultery. So, a husband might well be found to be validly married to a second
wife and, thus, have a defense to a charge of adultery yet at the same time, from the
perspective of the prior, monogamous first wife, would be committing adultery.

It would seem, as a matter of principle, that the status of the wife under the first
monogamous marriage is unaffected by any ceremony of a polygamous nature that her
husband may choose to go through. The status of the first monogamous marriage does
not change.

5.1Recognition of polygamous marriage

The general principle today is that a polygamous marriage will be recognized unless there is
some good public policy reason to the contrary.
View of lord Penzance

According to Lord Penzance remarks the polygamous marriage is unrecognized.

 Polygamous marriage is a barrier to a subsequent monogamous marriage in

England
This can be explained through case law
c. Baindal V Baindal
a) Facts of the case
the respondent, having gone through a potentially polygamous marriage in
India in 1928, then went through a ceremony at Holborn Registry Office in
1939 with the petitioner.
b) Held
Lord Greene MR held that an English court would recognize the polygamous
marriage as a barrier to a subsequent monogamous marriage, even though the
prior marriage might not be accorded full recognition for all purposes. In such
circumstances, the second marriage was bigamous and the petitioner was
entitled to a decree of nullity.
 Rule regarded the legitimacy of children of polygamous marriage
The children of polygamous marriage are legitimate and will be entitled to succeed to
property

Case law: Bamgbose v Daniel

it was held that the children of nine polygamous marriages were entitled to succeed after
the death of their father. there is no doubt that a spouse under a polygamous marriage is
entitled to succeed on intestacy

 claim under the terms of inheritance

according to provision of family and dependents Act 1975 a wife under a polygamous
marriage has locus standi to claim.

Case law: re sahota

 the deceased left his entire estate to the second of his polygamous wives. Foster J, at a
preliminary hearing, determined that the first wife was entitled to claim as a ‘wife’ under
the legislation. In reaching this conclusion, the learned judge followed the approach of

Dunn J in Chaudhry v Chaudhry who had ruled that a spouse under a polygamous
marriage was entitled to claim under the Married Women’s Property Act 1882. In like
terms, the wife under a polygamous marriage was accorded protection in respect of the
family home and domestic violence under the terms of the Family Law Act 1996.

 Section 47 0f matrimonial causes Act 1973

Matrimonial relief and declaration of polygamous marriage

A court in England and Wales shall not be precluded from granting matrimonial relief or
making a declaration concerning the validity of a marriage by reason only that either
party to the marriage is, or has during the subsistence of the marriage been, married to
more than one person.

6.1 Capacity to marry a polygamous marriage under English law

The main problem in the area of polygamy arises where a person whose personal law does not
permit him or her to marry polygamously marries one whose personal law does allow it, in a
country where polygamy is recognized and according to a form suitable to it

The question of capacity to marry is governed by dual domicile rule.

Case law: re bethell (1888) 38 Ch D 220

a domiciled Englishman contracted a marriage in Botswana with a woman of the Barolong tribe
under the native law, he was entitled to take other secondary wives.

Stirling J held the marriage to be void, partly on the basis that the English domiciliary
lacked capacity to enter into such a marriage.

7.1 English law provisions

Matrimonial Causes Act 1973: section 11, 14 and 5

  section 11
A marriage celebrated after 31 July 1971 shall be void on the following grounds only,
that is to say–
a) that at the time of the marriage either party was already lawfully married;
b) in the case of a polygamous marriage entered into outside England and Wales,
that either party was at the time of the marriage domiciled in England and Wales.

For the purposes of paragraph (d) of this sub-section, a marriage may be polygamous
although at its inception neither party has any spouse additional to the other.

 Section 14

Where, apart from this Act, any matter affecting the validity of a marriage would fall to
be determined (in accordance with the rules of private international law) by reference to
the law of a country outside England and Wales, nothing in s 11 shall

a) preclude the determination of that matter as aforesaid; or

b) require the application to the marriage of the ground… there mentioned except
as so far as applicable in accordance with those rules.

Section 5

The central provision is s 5(1), which reads:

A marriage entered into outside England and Wales between parties, neither of whom is
already married, is not void under the law of England and Wales on the ground that it is
entered into under a law which permits polygamy and that either party is domiciled in
England and Wales.

Section 5(2) of the legislation provides that ... this section shall not affect the
determination of the validity of a marriage by reference to the law of another country to
the extent that it falls to be so determined in accordance with the rules of private
international law.

8.1 Case law: Hussain v Hussain

  Facts of case

H, domiciled in England, married in Moslem form in Pakistan in 1979 Although the marriage
was in polygamous form, it was, at all times, monogamous. At a later date, when the wife
petitioned for judicial separation, the husband asserted that the marriage was void under s 11(d)
of the Matrimonial Causes Act 1973

 Judgment

Ormrod LJ observed, in respect of a decision in favor of the husband:

“It would mean that all marriages contracted abroad by persons domiciled in the country, in
accordance with the local law, would be void if that law permitted polygamy in any form. The
repercussions on the Muslim community alone in this country would be widespread and
profound”.

the Hussain judgment is that the marriage is monogamous because the husband is domiciled in
England and cannot, therefore, take any further wives.

9.1 Nullity of marriage

Nullity of marriage is a declaration by a court that your supposed marriage is null and void. In
other words, it is a declaration that the supposed marriage never happened.

 Nullity or annulment is not the same as divorce.

 Divorce is a declaration ending a valid marriage. Nullity is a declaration that a valid
marriage never existed.

In nullity law, there are two types of marriages that may be annulled or cancelled. There
are void marriages and there is  voidable marriage.

 Void marriages

To prove to the court that your marriage is void you must show one of the following grounds:

a) At the time of the marriage ceremony there was a lack of capacity. In other words, you
or your spouse was incapable of entering into a binding contract. This may happen:
 i. where one of you was already validly married or in a civil partnership or

ii. where you were too closely related to each other or

iii. for a marriage ceremony that took place before 16 November 2015, where you were of
the same biological sex

b) The formal requirements for a marriage ceremony were not followed. For example,
you did not give due notice to the Registrar of Marriages.
c) At the time of the marriage, there was a lack of consent. This may be due to duress,
mistake, misrepresentation or fraud. It may also be due to the fact that you or your spouse was
suffering from a mental illness or was intoxicated at the time of the marriage.

 voidable marriage

To prove to the court that your marriage is voidable, you must show one of the following
grounds:

a) At the time of the marriage ceremony, either party was impotent. You must show that
either you or your spouse was unable to consummate the marriage. You cannot obtain a
declaration of nullity because one of you is infertile. It must be the case that one of you is
incapable of sexual intercourse.
b) At the time of the marriage ceremony, either party was incapable of entering into and
sustaining a proper or normal marriage relationship. This may be due to a psychiatric illness
or personality disorder. It may also be due to the sexual orientation of one of the parties.

10.1 Conclusion
Polygamous marriages are the union of one man with more than one wife. It is
recognizable only in Muslim countries with the limit of only four wives at a time. In the
United Kingdom it is not recognizable but its nature can be changed with the change of
domicile. The children under polygamous marriage are consider legitimate and wives has
a right of inheritance too.