Sharia Series: Married at Four Sights. The recognition of Polygamy in Sharia and English Law
Polygamy is the practice of having more than one spouse simultaneously, and it’s often a topic that generates much debate. The topic of polygamy often arises with conversations surrounding Islam and Mormonism, however in many other religions and cultures polygamy is (or was historically) permissible.
The practice of polygamy, which applies only to a man having several wives, is known as polygyny. In the context of Sharia law, which governs the legal and moral framework for Muslims, polygyny is permitted but comes with specific guidelines and conditions. In pre-Islamic Arabia, polygyny was common, and often without any restrictions. When Islam was introduced, it sought to regulate and limit the practice to ensure fairness and justice.
Islamic Perspective
The primary source of Sharia law, the Quran, addresses polygyny in Surah An-Nisa (4:3), which states: “If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly (with them), then only one.” This verse sets the maximum number of wives a man can have at four, provided he can treat them all equally and justly.
A question often arises as to why polyandry (marriage to multiple men) is not permissible in Islam. Whilst there is no one source containing an answer to this, many scholars agree that the main reason issues with lineage arising from women becoming pregnant whilst practicing polyandry.
Conditions and Responsibilities
Within Islam, polygyny is subject to certain conditions and responsibilities that the husband must abide by for the marriages to be permissible.
- Equality and Justice: A man who chooses to have multiple wives must treat each one equally in terms of financial support, time, and affection.
- Consent: While the consent of the first wife is not a strict requirement in all interpretations, it is considered a good practice to seek her approval to maintain harmony within the family and many fatwa’s (ruling on a point of Islamic law) have been given to this effect.
- Financial Capability: The husband must have the financial means to support multiple wives and their children. This ensures that the practice does not lead to economic hardship or neglect.
Modern Interpretations and Practices
In contemporary times, the practice of polygyny varies widely across different Muslim-majority countries. Some countries, like Saudi Arabia and the United Arab Emirates, allow polygyny with few restrictions, while others, like Tunisia and Turkey, have banned it altogether. In many countries, the practice is subject to legal regulations that aim to protect the rights of all parties involved.
Polygyny in Sharia law is a complex and multifaceted issue. While it is permitted, it comes with stringent conditions aimed at ensuring fairness and justice. The practice and acceptance of polygamy continue to evolve, influenced by cultural, social, and legal factors in different Muslim communities. These complexities are only increased when we then consider the recognition of valid polygynous marriages in the jurisdiction of England and Wales.
Polygamy in England and Wales
Earlier in my Sharia Series, I explored the recognition of marriages entered into outside of England and Wales and whether they are recognised as valid under English law Sharia Series; void, voidable or non-marriage? (irwinmitchell.com)
Under English law, a polygamous marriage is defined as "any form of marriage in which a person has more than one spouse." The recognition of a foreign marriage in England and Wales is primarily determined by the law of the place where the marriage was celebrated (lex loci celebrationis). If the formalities of the marriage complied with the lex loci celebrationis, the marriage is generally valid, even if it does not comply with the requirements of one or both parties' place of domicile.
However, there is an important exception for polygamous marriages. A polygamous marriage entered into outside England and Wales will be void if, at the time of the marriage, either party was domiciled in England and Wales (this applies to marriages celebrated after 31 July 1971, as per section 11(d) of the Matrimonial Causes Act 1973 (MCA 1973), as amended).
The recognition of polygamous marriages in England and Wales hinges on two key factors: (1) whether the marriage was actually polygamous, and (2) the domicile of the parties at the time of the marriage.
If a marriage is not actually polygamous (neither party had an existing spouse when they married each other) then the marriage will generally be recognised as valid in England and Wales, regardless of the parties' domicile. This is because the marriage does not fall within the scope of the MCA 1973 provision that voids polygamous marriages involving parties domiciled in England and Wales.
However, if the marriage is actually polygamous, meaning that at least one party was already married to another person at the time of the marriage in question, then the domicile of the parties becomes crucial. If either party was domiciled in England and Wales at the time of the marriage, the marriage will be void under English law, even if it was validly celebrated under the lex loci celebrationis.
Interestingly however, if neither party was domiciled in England and Wales at the time of a valid polygamous marriage, and the marriage was valid under the lex loci celebrationis, then it will generally be recognised as valid in England and Wales, subject to any other grounds for non-recognition. There are very limited precedent cases about how this is applied in practice, or whether any arguments of the invalidity of the second marriage can be raised on the basis of it being contrary to public policy in England and Wales.
This complex and layered area of law raises a lot of questions which are yet to be tested. Lawyers within the Irwin Mitchell Religious and Cultural Team of Excellence deal with these topics daily and can provide expert advice.
