Does banning polygamy actually harm women?

The need for Ireland to frame its approach to polygamous marriages was expressed in the Supreme Court's ruling yesterday the first marriage of a Lebanese man with two wives can be recognised under Irish law.

However, the complexity of the issue of polygamy, or plural marriage, is evidenced by the fact that both recognition and non-recognition of the practice are potential sources of harm to women.

This has led to the reluctance of international human rights law to interfere with cultural norms in this regard and to also allow of the application of cultural relativism to the issue.

Cultural relativism results in the rights of parties to polygamous unions being assessed in different ways, depending on the culture of the assessor. When operating within the international context, those who are from a cultural background that does not approve of polygamy may deem that the best method of protecting an individual’s rights is to ensure that polygamous marriages are not recognised. However, those who are party to a culture that recognises polygamy may believe that the protection of such rights is best served by honouring the validity of polygamous unions.

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Both approaches fail to adequately address the issue. It can be argued that although polygamy is not expressly prohibited by any international human rights instrument, it is implicitly forbidden as it is contrary to a variety of rights guaranteed by these measures. However, if the practice is blatantly at odds with the rights of women, it would be reasonable to expect that it would be expressly forbidden. The lack of a concrete ban of the practice is an indication of the conflict between the human rights that these measures serve to protect.

The most prolific form of polygamy, polygyny, is associated with gender inequality, child marriage and the vulnerability of women and children in male-dominated societies. Consequently, the practice conflicts with progress made in relation to the rights of women and children and the guarantees provided to them by international human rights instruments.

Hence, the refusal to recognise polygamy because of the associated harms may initially appear to be the correct approach to the issue. However, the conflict between polygamy and women’s rights is more perplexing than monogamous jurisdictions may wish to acknowledge.

A state’s refusal to recognise polygamy does not alleviate the harms associated with the practice. In fact, it denies women who are party to polygamous unions of their matrimonial rights, and thereby reinforces the associated harms. This situation, together with the fact that a state cannot prevent the creation and existence of polygamous unions within its jurisdiction, is not being adequately addressed.

In reality, an additional spouse may be entitled to immigrate to a monogamous jurisdiction as an individual and may join her polygamous family upon arrival. In addition, polygamous marriages may be formed by persons domiciled in the jurisdiction via cultural or religious ceremonies. As these unions are not recognised for the purposes of matrimonial relief, a two-tier system of matrimonial rights is created with parties to polygamous marriages formed within the jurisdiction having to self-regulate through means such as Sharia councils.

Individual monogamous states have allowed for the recognition of polygamy in limited circumstances which has resulted in a variety of legal ambiguities. Monogamous societies traditionally referred to the incompatibility of polygamy with the Christian concept of marriage. This now seems a rather antiquated reason to refuse to recognise the practice.

The current focus on the prevention of harms to women is a concept which is much more of this time. However, contradictions arise when states recognise polygamy in some instances to prevent women from being subjected to harm, while simultaneously causing harm to women by refusing to recognise polygamy in other circumstances.

An outright solution to the issue of polygamy remains elusive. Ultimately, the question of whether a state should recognise polygamy centres on a balancing of harms. A legitimate examination of the issue is required to create a uniformed and theorised approach. This involves facing the reality that the non-recognition of these unions entrenches the harms associated with polygamy. It also requires the acknowledgement that the cultural practices of the residents of this state are evolving. The law must correspond with these changes if we truly care about the potential vulnerability of these women.

Avril Cryan, B.C.L., LL.M, is a legal researcher with an interest in family law and cultural practices.