3 - Polygamy in England: Tracing Legal Developments

Summary

In Chapter 2, I argued that we need to be more conscious of the context that surrounds the development of legal responses towards polygamy in England and Wales to better understand how the current framework came about. I now build this contextualised account of the law to uncover the forces that shape and frame the law and its effects on people in these marriages. I start in this chapter with the law around polygamous marriages that are celebrated in England and Wales between individuals who are domiciled and/or living in these countries. If a polygamous marriage is celebrated between two people who are domiciled and/or living in England and Wales, regardless of where the ceremony takes place, it would be void. This is because a UK resident or domiciliary who is already in a marriage which is legally recognised in the UK does not have the capacity to contract another legally binding marriage. This approach applies where the ceremony falls within the scope of the Marriage Act 1949 because it purports to be the kind of ceremony that would be legally valid or because the parties have tried to comply with some or all of the requirements in the 1949 Act. However, there are also ceremonies that do not fall within the 1949 Act, and these are seen as non-qualifying ceremonies which are non-existent in legal terms. These tend to be marriages that are valid in religion, such as the Muslim Nikah, but do not meet the requirements of the 1949 Act around giving notice, registration and location. Why does it matter whether it is a void marriage or a non-qualifying ceremony? When a marriage is void, the courts are still able to provide financial relief to the parties if the relationship breaks down. The same is not true for a non-qualifying ceremony. As it is non-existent, there is no opportunity for the parties to seek relief from the courts. Polygamy celebrated informally in England and Wales is most likely to fall under this category.

It is difficult to produce a stable or linear narrative of how this framework has developed over the centuries, although there are some detailed explorations of its historical development that we can draw from (see for example, Witte, 2015).