The Niqabi Paralegal

Actually, I think Americans first seriously grappled with polygamy in the Mormon context. I am not a serious student of history in the Western United States but I seem to remember that polygamy was outlawed in Utah as a specific requirement of Statehood. Someone from out West may have a better grasp on this than I do.

I didn't mention Mormons because the issue of polygamy for Mormons was resolved once they came under U.S. legal authority. Native Americans by contrast retain an independent sovereign identity(of course, Indian tribal law is a whole separate issue).

The question I wanted to address, following Professor Volokh's lead, is whether a polygamous marriage that was lawful where it was made will be recognized. In other words, this is a comity issue.

This post follows up on my earlier discussion of whether U.S. courts recognize child custody decisions made by foreign courts. The same principle is followed in both cases: the decisions of foreign courts are recognized only when they don't contradict U.S. public policy.

If U.S. courts became more friendly to recognizing polygamous marriages made in foreign countries, then there might also be a move towards recognizing polygamous marriages made in the U.S.

But those are two separate legal questions.

It's interesting to compare the American cases with those from other countries. There's a fascinating British case entitled A-M v. A-M, [2001] 2 FLR 6, which concerns a polygamous marriage solemnized in Sharjah between an Iraqi man and a Syrian woman who were then domiciled in the UK. The court held that, under the Family Law Act 1986, "some foreign marriages are entered into under a system of law which permits polygamy and may properly be called polygamous. If valid by local law, and permitted, by the law of the domicile of the parties, they will be recognised by English law." The 1986 law apparently abolished the prior rule of Hyde v. Hyde, [1866] LR 1, P&D 130.51, a case involving a Mormon couple which held that polygamous marriages were entitled to no recognition in England. (The A-M case also discusses, at considerable length, whether the Sharjah marriage was valid under Islamic law.)

There's also a recent Hong Kong case, Lam v. Ping, [2000] 3 HKC 167, specifically recognizing polygamous marriages valid under the law of the jurisdiction where they were solemnized. It cites another case entitled Husain v. Husain, [1983] Fam 26, which I wasn't able to find.

There's a very interesting Canadian annotation from 1932 (4 DLR 1) that cites Hyde and other cases, and hints at the beginning of a change in the law:

Although polygamy is an institution which has no counterpart in English law and which is even rejected by English law on moral or religious grounds 64 Cf. Franz Kahn, Abhandlungen zum Internationalen Privatrecht (1928), vol. 1, pp. 114-118.64, it does not follow that it would be either just or reasonable or in accordance with law, that an English court should refuse to give any recognition to a polygamous marriage validly contracted under its proper foreign law 65 The technically foreign law, it need hardly be pointed out, is quite likely to be the law of some part of the British dominions.65 or should afford no protection to the parties to such a marriage or the children of such a marriage.

[...]

In the case of Re Bethell, 1888, 38 Ch. D. 220, in Section II, 4(b), supra, a child of a polygamous marriage was denied even the right of succession in England, and the best explanation of this decision would appear to be that the man's domicile was regarded as having been continuously English notwithstanding his residence with the Baralong tribe in South Africa. In support of the view that domicile was the controlling element in the decision, see the article by Fitzpatrick, already cited, in 2 Journal of Comparative Legislation 359, at pp. 383-387.67, but it is probable that an English Court would consider that the proper law governing a polygamous marriage might in some circumstances be sufficiently based on facts other than domicile in the English sense.

The right view, it is submitted, is that parties to a polygamous marriage which is valid by its proper law acquire by the marriage a lawful status which should be recognized in England as such, and that they cannot be regarded, either socially or legally, as unmarried persons living in a state of concubinage; and that it is immaterial whether after the marriage they acquire a domicile (in the English sense) in England or not. Obviously the character of the marriage must be fixed at its inception, and if it is originally polygamous under its proper law, the change of domicile cannot either entitle it to recognition as a marriage in the English sense or render illegal and void what is originally lawful and valid.

Finally, I found an article by Judy Scales-Trent entitled African Women in France, 24 Brooklyn J. Int'l L. 705 (1999), which states that a 1993 French law prohibits recognition of polygamous marriages and forbids members of polygamous families to immigrate to France under family reunification programs. Apparently, though, a French court in the 1958 case of Chemouni v. Chemouni recognized a polygamouys Moroccan marriage as valid for divorce purposes. I'm not sure if Chemouni is still good law in light of the 1993 legislation.

If you want copies of any of these cases or articles, just let me know.

As far as I know, the "A-M" in the British case doesn't stand for al-Muhajabah. :)

Thanks for all that information, Jonathan! In Bir at 258, the court quotes an English law review journal from 1932:

In 48 Law Quarterly Review 341 (Oxford, 1932), will be found an exhaustive treatise on the subject in which both English and United States decisions are cited. There at page 348 it is said:

"It does not appear, therefore, that the reported decisions of the English Courts really afford any support for the view that polygamous marriages must in all cases be regarded as void in contemplation of English law and the issue as illegitimate. Such inferences as can be drawn from them are rather in the contrary sense. As, however, there is a singular absence of direct authority on the question in the English cases, the decisions of American Courts of or Courts in other parts of the British Empire would presumably in a matter of this kind have a considerable persuasive authority in so far as they are decisions of Courts applying a law which is either based on English law or which, like English law, does not allow of polygamy."

And the opinin goes on to quote extensively from this law review article and the precedents in American and Canadian law that it found. It concludes:

"It is now possible to begin the examination of the principles to be applied to determine the cases in which polygamous marriages can and cannot be recognized in English law, so as to confer on the 'wives' the status of a wife, for the purposes of section 10 of the British Nationality and Status of Aliens Act or for the purpsoes of succession, and upon the children the status of legitimacy.

"The general principles of Private International Law applied by the English Courts to determine the validity of marriages in general are [...] that the marriage is valid if, and is not valid unless, (i) the parties possessed the capacity to marry each other according to the law of their domicil; (ii) and the marriage was a valid one under the lex loci contractus."

It's interesting to see the development of case law on this issue. Frankly, I found the Bir opinion to be more culturally sensitive than the Ezeonu one, even though Bir was written in 1948 and Ezeonu in 1992.

Frankly, I found the Bir opinion to be more culturally sensitive than the Ezeonu one, even though Bir was written in 1948 and Ezeonu in 1992.

It's even more so when compared to other New York decisions that don't involve accusations of rape. The Ezeonu court could be forgiven for interpreting "public policy" strictly, given that the defendant basically kept the victim as a slave and that his use of the marital defense (which has since been repealed) was a cynical attempt to avoid criminal liability. The trouble is that the NY courts, which invoke public policy more frequently than those of many other states, have reached the same conclusion in cases involving the rights of genuine spouses.

For instance, the case of Estate of Akuoku, N.Y.L.J., May 28, 1998, p.28 (Surr. Ct., N.Y. Co. 1998), which - like Bir - involved a second wife's right to share in a decedent's estate. The New York court reached the opposite conclusion from the California court in Bir, and left the second wife with nothing. In another case, Uboh-Abiola v. Abiola, N.Y.L.J., July 12, 1992, p.25 (Sup. Ct., N.Y. Co. 1992), a NY court held that one of Chief Moshood Abiola's wives was not entitled to a share of marital property upon divorce, although it granted her child support and custody of her children (neither of which depended on the existence of a valid marriage). It would seem to me that any public policy against recognizing polygamous marriages in such cases would be outweighed by the public policy against leaving widows or divorced women destitute.