A contextualised historical account of changing judicial attitudes to polygamous marriage in the English courts

Abstract

Whilst much of the literature focuses on debating polygamy as a harmful practice, the purpose of this paper is to consider a different form of harm by exploring judicial responses to this relationship and the women who engage with it. Over the years, the courts have been faced with numerous questions on the recognition and regulation of polygamous marriages. Commencing with an overview of existing literature on polygamous marriage, I situate and explain the post-colonial feminist-inspired conceptual framework that underpins my judicial discourse analysis of English case-law in this area spanning from 1866 to the present day. A post-colonial feminist lens exposes the racist, orientalist, imperialist and sexist attitudes permeating judicial language in relation to polygamy and its participants. These patterns of discourse subordinate women in polygamous marriages, leaving them in a vulnerable position. With time, these discourses seemingly fade but, through a closer reading of recent cases, it becomes evident that they are still present, albeit in a subtler form as a matter of public policy, morality and ‘good’.

The racialising effects of non-marriage in English Law: A critical postcolonial analysis

“…Non-marriage is a judicial concept developed through common law. The most effective way to understand its development and application is to look at what is being said and done in the courts because judges are active agents who represent mainstream understandings and as a result reproduce orientalist, racialised and Christian discourses (Herman, 2011;Naqvi, 2017). I have analysed over forty case law reports that I sourced on the legal database Westlaw using the keywords 'non-marriage' and 'non-qualifying ceremony'.…”

Tokenizing and Articulating Protection of Women in Migration Law: Strategies of Exclusion in Contemporary Europe and the Nineteenth-Century USA

“…This application of the Directive does not verify whether the rights of the additional spouse were more effectively respected by rejection or approval of the application, for instance through providing the spouse with a procedural option to rebut the presumption of involuntary marriage. The rule thus most often harmfully impacts the women who are additional spouses (Stybnarova, 2020; Naqvi, 2017).…”

“…Limiting options for family reunification with the given measures in effect curtails the immigration of certain classes of migrants, particularly Muslims (Shah, 2003), but above all the women whose equality was of concern to the legislators (Case Study 1). Moreover, the measures adopted do not result in meaningful consent (Stybnarova, 2020; Naqvi, 2017).…”

Teleology Behind the Prohibition of Recognition of Polygamous Marriages Under the EU Family Reunification Directive: A Critique of Rule Effectiveness

“…8 The negative responses of national courts to polygamous marriages in the first half of the 20 th century corresponded with typically superior colonial approaches to the colonialised countries' cultures to the extent that they did not comply with Christian values. 9 In that period, regulation of polygamous marriages in countries without a stronger colonial outreach, e.g. in the Austro-Hungarian Empire, was accordingly restrictive for the reason of superiority of Christian morality 10 but also potentially as a legacy of historically conflicting relation to the Ottoman empire.…”

“…The legitimacy of the aim to enhance rights-based value of protection of women while limiting rights and freedoms of spouses in polygamous marriages has been questioned by studies on cultural bias behind the concept of human rights 41 or even more specifically, cultural bias behind the approach of Western courts to polygamy. 42 In spite of the change in the substantial argumentation against recognition of these marriages, the rejection of recognition of polygamy has always been and is still now underlined by the idea that Western values are superior to Islamic values. 43…”