Same sex marriage and polygamy

In all the contention about same sex marriage, one issue was brought up on what might be termed the religious side of the debate, namely that to legislate for same sex marriage would lead to pressure to legalise polygamy. Now this has been described as a cynical ploy by those in favour of the government's proposal and I wasn't sure at first whether this was a genuine concern or not. Thinking through my earlier conclusions about devising and recognising separate religious and civil marriages, I rather think there may be some substance to what is being said.
Neil Addison published an article recently on the subject which you can see here:

Same sex marriage and polygamy - where's the link?

Now I'm not sure that there will be great pressure to recognise polygamy in English law, but giving religious marriage a separate and recognised status may do that quite unintentionally. Have a look at this:

Polygamy in the UK

Already it seems that there are increasing numbers of Muslims living polygamously and they are able to do this without infringing on their religious obligations because it is expressly provided for. Giving a legal status to the nikka means that polygamy gains a status in law which it does not and cannot have at present. On the other hand, if you choose to protect the present position by forbidding multiple wives either civilly or religiously, do you risk being seen to interfere in matters of religious observance? But, you may say, the practice of nikka in some quarters is already infringing on the legal position and we have chosen to do nothing about it. Why not allow Muslims to do whatever they choose? They are consenting adults, after all.

Is polygamy wrong in principle? As to that, I'm firmly with the British Colombian Chief Justice;
"polygyny contravenes women's rights to equality with the male, harms and impoverishes their children, and .... the practice harms ALL society in that it pits younger, poorer men against older, richer males in the search to collect women as concubines in their harems. (Mother Nature has not even made two women for every one man.)  Every man who helps himself to four wives is robbing three other men of the chance to have a wife and family of their own, thus making polygyny an anti-social act. As well, while the man has a choice of sexual partners every night, the women must line up and take their turn, just as if they were cows waiting to be serviced by the bull. Moreover, only the first, legal wife and her children are entitled to share in the man's income, pensions, health, dental and vision coverage, etc. The remaining women and their children are on their own, and face poverty. "

Even to consider altering the consistent monogamous stance of English law for as long as there have been records is, so far as I am concerned, unthinkable. Equally, however, to allow some individuals to circumvent the law is unacceptable. If this is happening, and in the light of the BBC report there is every reason to think that it is, the time has come for it to be confronted. As I mentioned previously, an entirely parallel jurisdiction is being constructed and this must be to the overall detriment not only of individuals who may be pressured into accepting it, but also for society as a whole. To me, this is a far more pressing issue than same sex marriage. I really do wish sometimes that politicians could get their priorities right.

 Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

How many types of marriage are there? How many should there be?

This week sees the end of the period of consultation for the proposed introduction of same sex marriage.I have been thinking this over ever since the proposal was first mooted.  From a family lawyer's perspective, I am coming to conclude that the law of unintended consequences is likely to kick in if this is enacted and rather more trouble is going to come out of it than was ever foreseen.  Let me explain what I mean.

Religious marriage and civil marriage.

In its consultation document on same sex marriage, the government says, "Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony."

They then go on to say, "From [these] discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done."

So I got to wondering, is this right?  Are there two different types of marriage recognised in law, religious and civil?  You know, I don't think there are actually.  And what's more, as I have thought this through, I think it's enormously important that there shouldn't be.

The Marriage Act 1949 (as amended)

The Marriage Act 1949 governs marriages in England and Wales.  It has been amended down the years but it cannot be simplified in the way that the Government's consultation suggests.  Part I of the Act deals with who can and cannot be married.  Part II deals with marriage in the Church of England.  Part III deals with marriages under a Superintendent Registrar.  Now that looks like the establishment of two separate types of marriage, religious and civil, until you look at s.26, which falls in the Registrar's half of the draw.  This sets out the Registrar's authority for marriages in various establishments, including synagogues and Friends Meeting Houses (Quakers).

So the extent that there is a distinction in law, it's between Church of England ceremonies and all the rest.  In fact, the longer you look at the Act, the less easy it is to make any clear cut separation into the two categories which the Consultation suggests.

This came to the fore recently in a High Court decision which concerned what the "husband" and the "wife" at the time saw as a valid marriage  but which wasn't.  You can read the judgment here -

Dukali v. Lamrani

The parties in this case went through a ceremony at the Moroccan embassy which they believed, and were advised, was valid in both English and Moroccan law.  As Holman J determined, though, it wasn't.  As a result, English law makes no provision for the wife on the ending of the relationship.

But why is it important?

Well, whether you like it or not, various religions teach uncompromisingly that same sex sex is morally wrong.  As marriages can presently be celebrated in a variety of religious premises, if same sex marriage is approved, on the face of it, it would be a clear breach of equality legislation for a church to refuse a same sex marriage ceremony to a gay couple. So the state would be seen to have legislated in a way which requires a religious body, presently entitled to institute a valid marriage, to do so in a way forbidden by its religious rules.

By trying to establish two separate identities for marriage, the government clearly hopes to sidestep this issue.  But will it work?  As I say, I don't believe that the Marriage Act is open to this interpretation anyway.  The only real distinction arising by virtue of the Act is valid marriages and invalid ones.  Any ceremony or celebration which does not comply with the provisions of the Act simply isn't a marriage.

Even if the Act did draw a valid distinction, this doesn't solve the problem.  Neil Addison is a practising barrister who happens also to be a Catholic.  He has pointed out on his blog that European law doesn't permit different treatment.

Religion law blog

He cites an authority to the effect that the European Court "reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage."  To be quite honest, this should come as no sort of surprise at all.

So as far as I'm concerned, to provide for same sex marriage, the government will first of all have to legislate for there to be two forms of marriage - religious and civil. This is the only way I can see for there to be two separate systems and might, and I would emphasise that this is by no means certain, might allow for religions to continue with ceremonies which excludes same sex couples.

The law of unintended consequences

I was quite shocked early this year (I think it was) to read an account of a family law seminar at which a solicitor from a leading practice, who is himself a Muslim, stated that probably around 85% of Islamic marriages are not valid in English law.  I have since asked one or two practising Muslims of my acquaintance if this accords with their perceptions and they confirm that if anything, it's an underestimate.  Muslim couples are going through a ceremony at the mosque, which is valid in the religious context, but they are not then going through the formalities needed to register themselves as a married couple according to the law of the land.

This in turn means that women in particular are at risk of losing out.  As they have no recourse to the divorce courts of the land, they are left reliant on the sharia courts only if the "marriage" fails.  So by the back door, we find different communities living according to entirely different jurisdictions and principles.  I really struggle to think of anything more divisive!

All citizens of the country should be subject to the same law.  Everyone should have the same rights before the law and all should have identical responsibilities.  This, I believe, is of fundamental significance and is a bedrock of society.

I therefore would hotly oppose any proposal which separates and legislates for different forms of marriage.  There should be one form and one only.  There should be nothing to encourage the legitimisation of a separate religious status which deceives parties into thinking they have legal protection and recognition when they do not.  Indeed I would go further - I would much prefer to see legislation outlawing ceremonies which purport to be valid marriages when they simply aren't.

Are two separate jurisdictions feasible?

At present, we have one simple question at the outset of a divorce case - are the parties married? Without a marriage, there can't be a divorce.  Without a divorce, there can't be any invocation of or reliance upon the financial provisions of the Matrimonial Causes Act.

Now if we have separate forms of marriage, the courts risk becoming reliant on religious bodies deciding whether parties have been validly married or not.  And as we all know, religious authorities seem quite skilled at disagreeing even on the fundamentals of their own beliefs!  Is this really what we want?

The alternative is simply to say that as with the present day Islamic marriage, it will just have no legal recognition and no access to remedies on divorce.  For me, that would be the worst possible outcome.  Already we see at least one community withdrawing into itself in this area of law.  We should be legislating against this, not to encourage it.  A fractured and divided society is highly dangerous - both history and current affairs should make this entirely clear.  I think there needs to be a much more careful and reflective approach to this whole question.  If the price to be paid for this proposal is to drive certain communities to turn in on themselves and opt entirely out of the civil law, this would be far too costly.




Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.