Post Pandemic Polygamy: Plural Marriage in the UK, UAE and Utah 2020

10th June 2020 Family Law

Many relationships, across the world, will have come under strain during the last few months of lockdown. If the challenges for the monogamous have been tough, inevitably there is a curiosity about the impact of the same restrictions on plural relationships.

2020 has been a year when, to an extent, the veil has been lifted on a subject that many consider taboo.

In May this year in the USA, Polygamy in Utah was declassified from being a Felony (punishable with up to 15 years in prison) to an Infraction (punishable with fines of up to $750 and community service). It will still be a felony, however, if it came about through threats, fraud of force or involves abuse.

A Utah State Senator explained “We did not legalize bigamy…we simply removed the fear of otherwise-law abiding polygamists of being jailed or having their children taken away from them”.

The legislation was driven by evidence that polygamists were unlikely to report or discouraged from reporting serious offences (such as child abuse) or seeking outside help because of the risk of prosecution for bigamy.

In the Middle East, Gulf News recently ran an interesting story last week about the apparent dilemma faced by husbands in polygamous marriages and life under curfew; the focus was on helping to answer the question, which wife to spend time with?

The article explained that there is a religious duty to “achieve justice among his wives” and the article went on to quote some of the advice based on local jurisprudence.

Dr. Ahmed Al Hajji Al Kurdi: If a husband had to stay with one wife only through the curfew, the other wives should be given the choice between acceptance and divorce.

Prof. Mohammad Abdul Gaffar Al Sharif: The Maliki school of jurisprudence suggested it was possible and permitted for either the husband or the wives to “buy time” from the affected wife or wives.

Preacher Hai Al Hai: That the Hanafi and Shafi schools of jurisprudence suggested that in such circumstances the husband should “compensate” the wife or wives to make up the nights lost.

Dr Issa Zaki: That the husband could simply “pick a wife’s name out of a hat”.

A polygamous marriage, entered into outside England and Wales, where neither party to the marriage was domiciled in England and Wales at the time of the marriage ceremony, is valid.

However, earlier this year the Court of Appeal looked at the status of the “non- qualifying ceremony”, the “Nikah” in the case of Akhter v Khan and another [2020] EWCA Civ. 122.

Ms Akhter and Mr Khan’s Nikah was not followed by a qualifying civil ceremony and therefore did not have a marriage ceremony inside the Marriage Act 1949. The consequence was that they were not married denying Ms Akhter the opportunity of making a financial claim when the relationship broke down, apparently because Mr Khan wished to have a second wife.

Unregistered faith marriages are not recognised and so a man who marries twice is not a bigamist despite the fact that the marriage is likely to be considered legitimate within his community.

Ms Akhter’s experience is understood to be part of a growing problem in the UK with men “marrying” in religious ceremonies but then refusing to validate the marriage through an official ceremony. The case has the potential of pressurising women into being part of a polygamous marriage or face a very uncertain financial future.

These days it is common in Middle Eastern countries where polygamy is practiced (but not in the Far East), for a wife to require the inclusion of a provision in her marriage contract to tackle the possibility of her husband marrying again. The impact of such agreements are generally not a prohibitive, more a route to divorce.

For anyone interested in the reality of polygamy in the UAE from an unusual perspective, Hussain Ali Lootah, an Emirati lawyer, poet and author has published his controversial account “Between Two Wives” of “A life that I have been coping with for nearly three decades and finally had the courage to testify to, revealing secrets that were hidden within walls for so long”.

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Michael Rowlands is a Partner located in Londonin our Family department

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