2.1 Patriarchy, history and post-colonial feminism: a conceptual framework

Much of the research conducted on legal responses to polygamous marriage is centred on its harms. For example, Thom Brooks (Reference Brooks2009) argues that greater harms are attached to polygamous marriage for women because it is structurally inegalitarian in practice and theory. He explains that polygamy is practically inegalitarian because it is rarely polyandrous,Footnote ⁶ leaving women without the opportunity to engage in polygamy in the same way as polygynous husbands. In addition, polygamy is theoretically structurally inegalitarian because, although a polygynous husband can divorce any of his wives at will, the wives may divorce him but not one another. As such, they may be bound in a relationship with another wife against their wishes. These two issues lead to the conclusion that polygamous marriages are incapable of existing outside of a patriarchal framework. Bhikhu Parekh (Reference Parekh2010) adds to this by arguing that polygamous marriages are more harmful because spouses feel ‘dispensable’ (Parekh, Reference Parekh2010, p. 287), whilst monogamous marriages provide a better prospect of spousal equality.

At first glance, the assertion that inequality and patriarchy underlie polygamy does not seem especially controversial until it becomes evident that monogamy is inherently positioned as the ideal non-patriarchal and egalitarian model of marriage (Beaman, Reference Beaman, Calder and Beaman2014). Gillian Calder (Reference Calder2009) questions the reality of this ideal, arguing that patriarchy transcends familial structure and to assume otherwise is naive. This critique exposes the unfair treatment suffered by women in polygamous marriages based on the flawed assumption that patriarchy is exclusive to their form of marriage. In addition, the idealised construction of monogamous marriage is damaging to monogamous wives, as the harm and patriarchal attitudes that they experience may be downplayed.

Whilst developing her thesis on minimal marriage, Elizabeth Brake (Reference Brake2012) questions whether ‘marriages within religious traditions that subscribe to gendered spousal roles [should] be deprived of recognition’ (p. 199). She further examines the harm arguments by undertaking a more contextualised comparison between monogamy and polygyny in the ‘small patriarchal religious communities within which polygyny tends to be located in the United States’ (p. 198). In finding that polygamy's ‘problematic features are not sufficiently different in kind from existing male-female monogamy to justify differential treatment’ (Brake, Reference Brake2012, p. 200), Brake therefore demonstrates the importance of context to determine that the influencing factor on harm and gendered roles in these communities is patriarchy.

In other work, Joanna Sweet (Reference Sweet2013) examines the abuse suffered by women and children in Canadian polygamous marriages, concluding that ‘patriarchy (as evidenced in the extreme form of polygyny) is harmful’ (p. 18). In her exploration of the 2010–2011 Reference regarding section 293 of the Canadian Criminal Code, which considers the constitutionality of Canada's prohibition of polygamy, Sweet (Reference Sweet2013) also finds that the Reference does not ‘delve into the extent to which patriarchal monogamous marriage creates gender inequality’ (p. 18). She concludes that it is the manifestation of patriarchy that is harmful, thereby aligning her critique with Calder's (Reference Calder2009) and Brake's (Reference Brake2012) assertion that patriarchy is the real concern.

The work on patriarchy and harm in polygamous marriage has inspired the choice of a post-colonial feminist conceptual framework for two main reasons relating to the disruption of dominant discourses and historical consciousness. I view post-colonialism as an ‘intellectual movement’ (Woo, Reference Woo2011, p. 92) focusing on critiques of colonisation that situate post-colonial as a label for the study of colonial practices and their consequences. Post-colonial feminism explores the intersection of colonial critique and gender to consider the effects of colonisation on women. Gayatri Spivak (Reference Spivak1999) observes that colonised women are essentially constructed as Brown women who need White men to save them from Brown men. This serves as a starting point for understanding the characterisation of women in polygamous marriages and the harms that they suffer in English law. The mentality that Brown women still need saving persists today as evidenced by the discourses surrounding other practices including the hijab.

After decolonisation, many women have used the hijab to make a political statement and declare their resistance to colonialist narratives that portray them as oppressed and forced to hide (Yeğenoğlu, Reference Yeğenoğlu, Lewis and Mills2003). Through this resistance, women use the veil to disrupt colonialist discourses that provide them with a White saviour (Chow, Reference Chow, Lewis and Mills2003). Thus, a post-colonial feminist lens serves to expose gendered and colonialist narratives in legal judgments that can then be disrupted or questioned. In doing so, steps can be taken to interrogate the assumptions and attitudes that govern approaches to polygamy in the law (for further discussion, see e.g. Lewis and Mills, Reference Lewis and Mills2003; Vakulenko, Reference Vakulenko2012). The utility of such discursive disruption is further evidenced by the feminist scholarship on polygamous marriage outlined above. By exposing the presence of harm and patriarchy in monogamous marriages, the argument that polygamy is inherently harmful is successfully disrupted, informing my analysis of judicial discourse.

The second reason that I have adopted a post-colonial feminist approach concerns historical context. Jane Haggis (Reference Haggis, Lewis and Mills2003) refers to post-colonial feminism as a ‘feminist historical project’ (p. 163) and scholars in this branch of feminism use the past to better understand and question the present. Kaganas and Murray (Reference Kaganas and Murray1991) illustrate the effectiveness of historical consciousness by grounding their analysis of South African polygyny in colonial history. Referring back to the ‘ethnocentrism of white colonizers’ (Kaganas and Murray, Reference Kaganas and Murray1991, p. 125) facilitates a more nuanced deconstruction of legal approaches to South African polygyny, so that prevailing attitudes can be problematised. The use of history to contextualise the development and presence of colonial discourse is effective in advancing contemporary understandings of case-law, as legal judgments, especially those on marriage, are shaped by prevailing social attitudes (Probert, Reference Probert2012). This provides a clearer picture of the current situation and how the courts have arrived there, enabling us to challenge contemporary judicial attitudes towards polygamy in English law.

It is also pertinent to consider some of the research investigating attitudes to polygamy in English law in the post-colonial context. For example, Prakash Shah (Reference Shah2003) looks at the vulnerability of individuals in polygamous marriages in the UK and concludes that outlawing polygamy drives the practice underground. Shah attributes the rise of polygamy and its presence in the courts to Asian and African immigration into the UK, thereby showing the importance of paying heed to context. He engages in a thought-provoking and historically conscious analysis of the existing English legal framework, arguing that the current system remains unsatisfactory. Adopting a legal pluralism approach, he ultimately asserts that individuals engage in polygamy outside of official law and, in failing to recognise this and adapt accordingly, women and children suffer the most. Shah limits his analysis of the law to the areas of immigration and family reunion and there is little evidence of engagement with feminist legal critiques. However, this piece is useful, as it highlights the implications for women in polygamous marriages of current legal and judicial attitudes to this practice. Building on this, I can then move towards exposing the underlying influences and views that impact upon and subordinate women in this area.

Adrien Wing (Reference Wing2001) has also been active in researching polygamy using a global critical race feminist approach in the UK. Wing expands critiques of polygamy to consider the broader socio-legal dynamics that shape and influence the legal framework with reference to polygamous families in Black Britannia. Along with insights provided by Shah, I use her work to examine legal and judicial attitudes towards polygamous marriage in the UK through a critical post-colonial feminist lens, thereby improving understandings of how the law responds to women who practise polygamy and why it responds in this manner.

Investigations into colonialist influences on polygamous marriage also uncover patterns of orientalist and imperialist thought that bear consideration. Drawing again on the existing research on polygamous marriage, I shall now explain the interpretation and use of these two closely linked concepts.

2.2 Orientalising discourse: personal agency and religious supremacy

Edward Said (Reference Said2003) defines orientalism as a discourse that encompasses dealing with the Orient and authorising views of it. There has been much debate over defining the Orient but I argue that the Orient encompasses both the Arab and Asian world and simply comprises nations that are not considered part of the West.Footnote ⁷ Due to its exotic and different nature, the West deals with the Orient by forcing it into a Western paradigmatic model that it cannot fit into because of its differences (Said, Reference Said2003). This difference is held as evidence of the Orient's inferiority, providing colonisers with knowledge that they would then use as a source of power to exercise over the backward colonial natives (Lewis, Reference Lewis and Macfie2000).

Critiques of orientalist behaviour in the law are effective in highlighting orientalism as a source of the Western supremacy that drives imperialism and the White colonialist saviour. Teemu Ruskola (Reference Ruskola2002–2003) studies orientalist influences on the Chinese legal system, arguing that the West claims an ‘ultimate interpretative authority’ (p. 234) over laws and legal systems in the Orient. Here, we can see orientalism at work with Western observers claiming superior knowledge over the laws of an ‘other’ oriental nation. Interestingly, orientalist ‘knowing and othering’ processes permeate contemporary studies of polygamous marriage. Beaman (Reference Beaman, Calder and Beaman2014) notes that attitudes towards polygamy are constructed around an ‘us’ (monogamists) vs. ‘them’ (polygamists) approach and this manifests in the lack of legal recognition for polygamous marriage. Looking for patterns of orientalist thinking in the case-law on polygamy enables us to understand how and why polygamy has been ‘othered’ using Western monogamy as the comparative standard.

Another theme in the polygamy literature related to ‘othering’ is concerned with the agency of women. In her work on Mormon polygamy and religion, Rebecca Johnson (Reference Johnson, Calder and Beaman2014) observes that women are portrayed as lacking in agency when making the decision to enter into a polygamous marriage as ‘a powerful social narrative presumes [their] consent to have been coerced’ (p. 110–111). Women are subject to orientalist assumptions regarding their agency to make the right decision about their marriage, rendering their decision-making abilities inferior to women in monogamous marriages.

Johnson (Reference Johnson, Calder and Beaman2014) adds a religious dimension to her critique with her ‘coercion presumption’, providing the basis for examining religious orientalism in legal responses to polygamous marriage. Although not universal, many women participate in religiously sanctioned forms of polygamy, indicating the utility of exploring the position of religion in judicial decision-making. Johnson (Reference Johnson, Calder and Beaman2014) challenges legal responses by asserting that, by assuming religious women lack the agency to be in a polygamous marriage, their beliefs are dismissed as ‘displaceable by logic’ (p. 111). This indicates a presumption of inferiority for religions that provide for polygamy, showing the pervasive nature of orientalist attitudes towards this non-normative form of marriage.

2.3 Imperialist ideals: national values and legal recognition

Another useful concept for analysing judicial approaches to polygamous marriage is British imperialism. Imperialism has close ties to post-colonialism because it is related to Empire-building and colonisation. Robert Young (Reference Young2001) states that imperialism provides the motivation for the physical process of colonisation and Wolfgang Mommsen (Reference Mommsen1981) expands this to make two key arguments that underpin my use of imperialism. He first asserts that White supremacy stems from ‘biological and racial variants of national imperialism’ (Mommsen, Reference Mommsen1981, p. 8) and should therefore be included within understandings of imperialism; and second that imperialism may also be an objective process that results in the civilised coloniser taking necessary control of a backward society. By including biological and racial characteristics, the close connection between imperialism, racism and White supremacy is displayed, indicating the importance of noting the role of these latter two concepts in judicial understandings of polygamy.

Mommsen's second argument regarding the civilising mission has become increasingly prominent in more contemporary definitions of imperialism and the reason for this evolution is attributable to decolonisation. Colonisation constitutes the most recent form of Empire-building on the basis of imperialist thought and among others, Thornton (Reference Thornton1961–1962) asserts that colonialists never saw themselves as exploiting colonies but mainly viewed themselves as ‘trustees of civilisation’ (p. 335). Thus, colonisation was for the benefit of colonised nations and peoples.

Exposing the ‘civilising mission’ mentality has been expanded in the research of critical scholars including Lila Abu-Lughod (Reference Abu-lughod and Abu-Lughod1998). Although not explicit, I noted a connection in her work between the imperialist civilising mission and current ideas of modernity. The term ‘backward’ (Mommsen, Reference Mommsen1981; Harshé, Reference Harshé1997) is frequently used to describe culture and society in former colonies and this word indicates a need to bring them forward into the present. When something is updated, it is modernised and so modernisation is a newer and more politically correct term for civilisation, with the same objective that I identify as Western imitation.

The notion of Western imitation is helpful for understanding judicial discourses surrounding polygamy because, as we shall see, marriage is also constructed in accordance with Western monogamous ideals. By looking for imperialist tropes within judicial discourse, the disruption of dominant colonialist narratives can be broadened to include imperialist ones. By uncovering and questioning both colonialist and imperialist discourses within these judgments, the effects of colonisation and Western supremacy on attitudes towards polygamy in the English courts can be investigated further.

It is noteworthy that existing research highlights the nation state and its interests as a bar to legal recognition for polygamous marriage. Critiques of imperialism aid in confronting the use of national interests and Margaret Denike (Reference Denike2010) provides insight into this when she considers race and polygamous marriage in Canada and the US. She observes the historical connection between nationalist sentiments and marriage, noting that ‘anti-polygamy campaigns were deeply implicated in the alignment of normative sexual monogamy and racial Anglo-Saxonism within the imperial logic of the nation-state’ (Denike, Reference Denike2010, p. 868). In charting racist and imperialist patterns of thought in these campaigns, she interrogates the denial of recognition for polygamous marriages and the preservation of a national monogamous identity. Sweet (Reference Sweet2013) also addresses these ideas in her critique of Canadian nation-building discourses, concluding that the monogamous marriage ideal is viewed as essential for upholding national values and women's equality.

In addition to religious orientalism, imperialist critiques of religion and the role of Christianity are useful for evaluating the English case-law on polygamous marriage. Inherent in the civilising mission is a sense of religious conversionism (Curtin, Reference Curtin and Curtin1972). For natives to become fully civilised, they must follow the most civilised religion: Christianity. Christianity was seen as an essential facet of life in the West and colonial natives would never be truly civilised until they had converted to this religion. As civilising has become modernising, conceptions of Empire have become more secular in nature, but the influence of religion is still a real concern, particularly in relation to marriage and the law. In applying a critical lens that looks for undercurrents of Christian imperialism in judicial attitudes towards polygamy, we can challenge the biblical ideal of marriage as monogamous.

Existing research on polygamous marriage provides a variety of interesting perspectives and critical examinations of this practice in the law. By drawing from and combining the insights of the existing scholarship, I am able to demonstrate that applying a post-colonial feminist lens to the case-law on polygamy proves effective in promoting a deeper analysis and understanding of the influences and discourses that shape and affect legal responses to polygamous marriage and women who live in such marriages in the UK.

3.1 Late nineteenth century: Hyde and Bethell

The first case on polygamy that bears consideration is Hyde.Footnote ⁹ Here, the husband, who was a former adherent to the Mormon faith, sought to dissolve his marriage to the respondent wife on the grounds of adultery. The marriage had been solemnised in Utah in accordance with Mormon requirements. Once the husband petitioner had left the Mormon faith, the wife married another man in a Mormon ceremony. The question for the court was whether, due to the petitioner's English domicile, the marriage would be considered valid in English law so that jurisdiction could be established and the divorce petition granted. It was held that the marriage was not valid for the purpose of enforcing any duties or granting relief for breach of matrimonial obligations.

This case provides a starting point for polygamy, as it was during the course of determining what constituted a marriage in English law that Penzance L.J. decided a legally recognised marriage could not be polygamous: ‘A marriage contracted in a country where polygamy is lawful between a man and woman … is not a marriage as understood in Christendom … the English matrimonial court will not recognise it as a valid marriage’ (Hyde, 1866, p. 130).

An English court could not dissolve a Mormon marriage that never existed in English law and no distinction was made between potentially and actually polygamous marriages: both remained unrecognised. Potential polygamy relates to unions that are ‘celebrated under a system of law permitting polygamy, [but] the husband may choose not to exercise his right to take a second wife’ (Lord Collins of Mapesbury with Specialist Editors, 2012, p. 965). Such a marriage is therefore de facto monogamous but, due to the potential for it to be lawfully polygamous under the law under which it was celebrated, it is viewed as being potentially polygamous. The other category of actual polygamy is more straightforward, as it constitutes ‘a marriage in which the husband has exercised his right to take a second wife during the subsistence of the first marriage’ (Lord Collins of Mapesbury with Specialist Editors, 2012, p. 965). Throughout Hyde,Footnote ¹⁰ there are various examples of imperialist, orientalist and patriarchal statements. For example, during the course of the judgment, Lord Penzance defines marriage in the following terms: ‘I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others’ (Hyde, 1866, p. 133). The emphasis on ‘Christendom’ indicates the dominance of Christianity in shaping understandings of marriage,Footnote ¹¹ illustrating the courts’ imperialist commitment to Christianity as the ideal for civilised marriage at the time, when faced with any form of polygamy.

This definition has been criticised by contemporary scholars as unrealistic even in 1866. Rebecca Probert (Reference Probert2007) draws on the work of Sebastian Poulter (Reference Poulter1979) to assert that Penzance L.J.’s statement is fundamentally flawed. Marriage is not always lifelong, as divorce decrees were granted even prior to Hyde Footnote ¹² and it would be difficult to determine the meaning of ‘voluntary’ both in 1866 and today.Footnote ¹³ Monogamy is not guaranteed, as infidelity provides grounds for divorce and so, even if two parties have contracted the marriage, further parties can be involved. Gillian Calder (Reference Calder2009) takes this forward to note that the only element of the definition that ‘remains firm’ is that parties marry ‘to the exclusion of all others’ (Calder, Reference Calder2009, p. 74). Thus, marriages that unite more than two parties are still excluded from understandings of marriage.

In addition to this Christian supremacist discourse, there are myriad examples of orientalism and patriarchy, as demonstrated in the passage:

Said's (Reference Said2003) abovementioned definition of orientalism included the notion of ‘authorising’ views of the Orient based on Western assumptions. The language of certainty employed in this excerpt through phrases including ‘no doubt’ and ‘in some parts they are slaves … in none do they stand’ provides evidence for this. Lord Penzance's confident and assured opinion orientalises and dismisses polygamous marriage because it does not fit within his understanding of the Christendom ideal of marriage.

The remainder of the passage exemplifies the intermingled Christian supremacist–patriarchal rhetoric to which women in polygamous marriages were subjected at the time. For example, unlike a Christian wife, the women in this scenario are not seen to be on the ‘same level’ as the man that takes them. This idea of being on the same level is encouraging at first because it suggests that a Christian wife could enjoy a level of equality with her husband. However, when read in conjunction with the words ‘with the man under whose protection they live’, traditional gender roles become visible once more. This statement is self-contradicting because a woman cannot be on the same level as a man if she needs to live under his protection. The very notion of male protection instantly places a woman in a weaker and more vulnerable position, displaying the rampant sexism in judicial discourses that not only relate to women practising polygamy, but also to the Christian wife. This discourse exemplifies Rebecca Probert's (Reference Probert2007) argument that, rather than defining marriage, Hyde Footnote ¹⁴ should instead be seen as a defence of marriage in 1866 that was shaped by its context. During this time, women were viewed as weaker and it is unsurprising that they were constructed in such patriarchal terms. Nevertheless, when combined with the imperialist and orientalist superiority displayed towards women in polygamous marriages, a hierarchy remains in which the Christian wife holds a higher value.

This passage also feeds into the debates discussed earlier surrounding women's agency. In the judgment, polygamous wives are portrayed as lacking the protection of an English husband, which can only be enjoyed by the Christian wife. Drawing on Spivak's (Reference Spivak1999) theory of the White male saviour, this exemplifies the mentality that polygamously married women need to be saved from their marriage. The judgment proceeds to state that ‘in some parts they are slaves’, indicating a loss of agency and personhood. As slaves, these women are constructed as incapable of deciding the form of marriage that they engage in. This supports Rebecca Johnson's (Reference Johnson, Calder and Beaman2014) orientalist presumption of coercion, thereby illustrating how Christian imperialism justified the denial of recognition for polygamy when combined with the orientalist gaze.

More than twenty years after Hyde,Footnote ¹⁵ little had changed in the courts’ attitude, as demonstrated in the case of Bethell.Footnote ¹⁶ This case dealt with the de facto monogamous marriage between an English-domiciled man and a woman named Teepoo, of the Baralong tribe in Bechuanaland. Their marriage was celebrated according to Baralong custom and was held invalid in English law because Baralong marriage does not confer the same status on the parties as Christian marriage. As such, Teepoo and her child with the deceased could not be recognised as heirs to his estate. The judgment also had stronger racist undertones than Hyde,Footnote ¹⁷ which involved parties who were both White and living in the West. Peter Fryer (Reference Fryer1984) explains that ‘[f]rom the 1840s to the 1940s Britain's “native policy” was dominated by racism. The golden age of British Empire was the golden age of British racism too’ (Fryer, Reference Fryer1984, p. 165). As colonised natives, the approach to the Baralong, in line with native policy, was focused on their inferior race.

Whilst establishing the facts, it is stated that the deceased

The reference to religion or lack thereof and its connection to polygamy are examples of Christian imperialism and orientalism. There is no indication of how this assessment was reached that the Baralong have no religion. In his depositions, the chief of the tribe refers to ‘Baralong custom’ (p. 222), although whether this is rooted in religion or tradition is left unclear. The discourse suggests that polygamy can only be countenanced if participants are either non-Christian or have no religion, alienating this practice and its participants from England and English law.

Elsewhere in the judgment, the Baralong are portrayed as a ‘barbarous or semi-barbarous tribe … beyond the limits of the British dominion’ (Bethell, 1887, p. 232). This is the first overtly racist discourse in the judgment and stems from the imperialist and orientalist notion that, as the tribe is living beyond the British dominionFootnote ¹⁸ and outside the reach of the civilised British authority, it must be ‘barbarous’. To characterise a people in this way is dehumanising and insulting because to be barbarous is to be uncivilised, cruel, coarse and unrefined (Allen, Reference Allen and Allen1990). Such racist discourse supports Mommsen's (Reference Mommsen1981) arguments regarding the use of racial and biological differences to bolster and underpin White supremacy and imperialism. At this time, the inferiority of a colonised people was based on ‘scientific evidence’ linking physical characteristics to intellect and morality in what Fryer terms the ‘pseudo-scientific mythology of race’ (1984, p. 165). Due to the Baralong being ‘barbarous’, having no religion and permitting polygamy, their racial and religious differences were highlighted and used against Teepoo and her child by the racist, imperialist native policy at the time to deny them lawful recognition and a share of the deceased's estate.

3.2 Mid- to late twentieth century: secularity and Western imperialism

By the mid-twentieth century, some noticeable change in judicial attitudes becomes apparent. There are no longer any explicitly racist overtones in judgments and, from the 1940s onwards, we start to see a shift in judicial discourse. Although the Marriage Act 1836, introducing the secular option of civil marriage, was passed prior to Hyde,Footnote ¹⁹ judicial decisions were still based on Christian ideas of marriage. During this period, the judicial discourse adopts more of a secular tone but Christian ideals remain prevalent alongside Western imperialism and orientalism. In addition, the courts start to respond differently to actually and potentially polygamous marriages.

One of the earliest indications of attitudinal change is found in The Sinha Peerage Claim case.Footnote ²⁰ This decision was different because the courts were willing to view potentially polygamous marriages celebrated in accordance with the law of a land that permitted polygamy, as valid in English law. In this judgment concerning an Indian Hindu marriage, Lord Strickland refers to ‘religious toleration throughout the Empire’ (p. 225), which suggests the underlying reasons for this shift could be attributed to a developing tolerance towards Hinduism and its adherents in the British Empire. However, the word ‘toleration’ is limited in scope and denotes reluctance. Wendy Brown (Reference Brown2008) scrutinises tolerance, arguing that it is a ‘token of Western supremacy’ (p. 182), centring the West as the standard for civilisation. Applying Brown's (Reference Brown2008) insights to this case, it is apparent that toleration remains a tool for orientalism. Other non-Christian religions and their practices will be tolerated but there is no room for full acceptance.

Despite the increasing decline of the British Empire,Footnote ²¹ the elevated status accorded to Christian marriage continues into the 1950s and 60s through the use of certain key words in case judgments. When discussing polygamous relationships, terms including ‘union’ and ‘association’ are used instead of ‘marriage’, creating a clear distinction between acceptable Christian marriage and all other non-Christian relationships. In Matthew Olajide Bamgbose Appellant v. John Bankole Daniel and Others Respondents,Footnote ²² the appellant claimed to be the lawful nephew of the deceased who was being prevented from inheriting all of an uncle's estate by the deceased's children from his nine customary Nigerian actually polygamous marriages. Interestingly, the Court of Appeal used the word ‘union’ to describe both Christian monogamous and polygamous marriages, although it is then stated that ‘the courts of Nigeria attached to monogamous and Christian marriages a sanctity not accorded to polygamous unions by native law and custom’ (p. 112). Thus, the descriptor of ‘union’ was used in the context of discussing the Nigerian courts’ approach to these two types of marriage, suggesting an imperialist racialised response to the court system in colonial Nigeria along with Nigerian conceptions of marriage. There is a sense of approval for the imperial-administered courts as they are implicitly compared to the native law that would have been addressed in the native courts (Falola and Heaton, Reference Falola and Heaton2008). Thus, polygamy is distinguished from monogamy on the same colonial judicial platform that native law (and its native judges) is distanced from the colonial administration.

A few years later, a further shift is noted in Shahnaz.Footnote ²³ In this dowry case for an Islamic marriage celebrated in India, polygamy is instead referred to as an ‘association’ (p. 398), thereby discursively distancing polygamy from marriage even further:

Between Matthew Footnote ²⁴ and Shahnaz,Footnote ²⁵ views of polygamy have deteriorated, as manifested in this descriptive change to ‘polygamous association’. Whilst ‘union’ still retains a sense of people coming together or uniting, ‘association’ is further removed from ideas of intimacy. It is possible to consider ‘union’ as a personal relationship but ‘association’ has more commercial and impersonal connotations. According to the Christian imperialist view, a union or association can never equate to the social and religious institution of marriage. The relationships entered into by adherents of other religions are therefore inferior and undeserving of the same level of recognition. The reasons for this deterioration are not clear, especially since there is a gap of under two years between the cases. It may either be down to the personal views of the presiding judge or to an overall shift in ubiquitous views of polygamy. Regardless, in excluding polygamy from understandings of marriage, its inferiority is reinforced, whether it is labelled a union or association. This then combines with the orientalist assumption that Christian marriage is the only form of marriage that is ‘properly understood’ as a matter of ‘morality’, thereby indicating that only those who have grown up with Christianity in the West can conceive of a proper marriage. Sexist discourses are further apparent in this passage as women in polygamous marriages are equated with ‘concubinage or slavery’. This pattern of thought is steeped in imperialist rhetoric, as these ‘Brown’ women were clearly established as slaves or concubines who required saving. Such a portrayal is subordinating to women in polygamous marriages, as the courts subject them to the degrading status of a concubine or slave who is associated or united with a man, rather than lawfully married to him.

Although there are multiple problematic discourses in Shahnaz,Footnote ²⁶ progress was made regarding overall responses to polygamy. In this case, a woman's contractual right in personam to the promised dowry from her potentially polygamous marriage was enforced, supporting the notion that such a marriage was ‘not unlawful’ (p. 391). However, the court was careful to ensure that it was not the potentially polygamous marriage or any right arising from it that could be enforced, but the dowry right from the contract the woman entered into in contemplation of the marriage. It is likely that the de facto monogamy here aided the court's subtle, but cautious, change in viewpoint. As explained by Judge Winn:

Judges were now willing to entertain claims related to potentially polygamous marriages as, by conforming to a de facto monogamous structure, they were no longer deemed ‘offensive’ or unlawful. In addition, Winn J. was cognisant of the difficulties that women who are party to a ‘Mohammedan marriage’ face after coming to the UK, declaring that:

This sympathetic policy statement is demonstrative of the progress made by the courts to adopt a proactive attitude towards the rights of women in potentially polygamous marriages celebrated overseas. It could also be attributed to the courts becoming more accustomed to seeing such cases, as immigration from polygamy-permitting colonies into the UK became more prevalent (Shah, Reference Shah2003). This in turn led to a willingness rather than outright dismissal to hear these women and their issues.

That being said, the colonial saviour theme is also prevalent in this statement, reflecting a persistent lack of development in cultural perceptions of gender. The suffering of women who come here is attributed to their ‘Mohammedan marriage’ rather than the courts’ attitude to that marriage. This constitutes a protection narrative, in which the court protects a potentially polygamous wife by enforcing her rights. Pathak and Rajan (Reference Pathak, Sunder Rajan, Butler and Scott1992) argue that such discourses of protection disguise power politics, as ‘[a]n alliance is formed between the protector and protected against a common opponent … [which] … conceals the opposition between protector and protected, a hierarchical opposition that assigns higher value to the first term’ (p. 263). This alliance and its protection come at the price of othering the wife by blaming her relationship and the new problems it has created for the law.

Further into the 1960s and 70s, another theme relating to entitlement to public money arose in the late 1960s that is still relevant today. In this area, individuals – mainly women and children living in polygamous families – were deemed an unacceptable burden on the state. The courts have sought to protect state funds from abuse by those in polygamous marriages, as shown in Imam Din v. National Assistance Board.Footnote ²⁷ Here, a man abandoned his second wife and their children in the UK, leaving them destitute and reliant on the National Assistance Board for financial provision. It was held that there was no good reason to deny recognition to the wife and children as being lawfully related under Pakistani law to the deserter husband so that he could not ‘avoid all responsibility and thereby throw the whole burden of maintaining his wife and children upon the public’ (Imam, 1967, p. 218). As Salmon J. stated: ‘I can find no such reason, and every reason in common sense and justice why they should be recognised’ (Imam, 1967, p. 218). Recognition of this polygamous marriage prevented the use of public money and forced a man to take responsibility for his second family, whilst also implying that that the maintenance of the polygamous wife and children is a burden on the state.

The court's attitude stems from the privatisation of responsibility for welfare that is at the heart of the neoliberal state in the UK today. Whitehead and Crawshaw (Reference Whitehead, Crawshaw, Whitehead and Crawshaw2012) explain that, as a result of neoliberalism, societal institutions are now expected to function as ‘business corporations whose rationale is profit generation’ (p. 233). As such, the line between the public service and private sectors has become increasingly blurred. In Imam,Footnote ²⁸ recognition of the polygamous marriage negated state responsibility for the welfare of the wife and children, placing the burden on the husband, but also placing this family in a vulnerable position. Even with a legal order, there was no guarantee that the husband would take financial responsibility, leaving this woman and her children at the mercy of a man who has previously refused to fund their needs. In addition to this vulnerability, the wife has been treated undeserving of aid by the state because of her polygamous marriage. To save state funds, the court created a gap between the provision of state aid that was denied to them and private aid for which there was no guarantee of payment, leaving the woman and children in an untenable situation of uncertainty and financial insecurity.

This was contrasted against Nabi (Ghulam) v. Heaton (Inspector of Taxes),Footnote ²⁹ which dealt with the income tax relief of a man who had two subsisting Pakistani polygamous marriages and could only claim relief for the maintenance of his first wife. It transpired that the husband in Imam Footnote ³⁰ had deserted his second wife after the death of his first wife and so he had only one living wife at the time of the desertion. The court recognised the marriage because, although it may have been polygamous at its inception, following the death of the first wife, the marriage became de facto monogamous.

In the period between these two cases, the Law Commission published its 1971 report on polygamous marriages, leading to the enactment of the Matrimonial Proceedings (Polygamous Marriages) Act 1972. This report departs from the reasoning in Imam Footnote ³¹ to opine that the wife's lack of entitlement to social security benefits was ‘unfortunate and anomalous … [because she] … should be treated just like any English wife if she was in fact her husband's only wife throughout their period of residence in England’ (Law Commission, Reference Law1971, p. 42).

This statement exposes the key source of suffering for women in polygamous marriages: judicial interpretations of their marriage ensure that they are treated differently and to their detriment. This differentiation is an orientalist othering process in which the courts deny a woman social security relief because she and her marriage are different from their monogamous ideal. Unfortunately, the Law Commission's opinion had little effect on later case-law, as evidenced by the Nabi Footnote ³² judgment.

During the Nabi Footnote ³³ decision, whilst interpreting the meaning of ‘his wife’ in section 8(1) of the Income and Corporation Taxes Act 1970, Vinelott J. stated ‘it seems to me to read the expression “his wife” as meaning “a wife” or “any wife” would be to do too great violence to the language of the section’ (Nabi, 1981, p. 1058). The word ‘violence’ is troubling, as it connotes an extreme reaction to the inclusion of polygamous wives within the scope of this provision. In Vinelott J.’s opinion, including polygamous marriage would cause significant harm on a par with physical damage to the section. This choice of words is reminiscent of the strong language used nearly a century earlier in Bethell.Footnote ³⁴ In both cases, there is a feeling of disturbance at the thought of polygamy and, even though the much earlier Bethell Footnote ³⁵ judgment is more explicit, the statement in Nabi Footnote ³⁶ demonstrates that these patterns of intolerant discourse are still present.

By recognising the two marriages to prevent the husband claiming two lots of tax relief, the court had a clear agenda of preserving and protecting state funds. This could harm the second wife, as the recognition of her polygamous marriage deprived her husband of a tax benefit linked to her maintenance, which remained with respect to the first wife. The second wife was disadvantaged and both her financial security and position were affected. The decision impressed upon her that, as a second wife, she was not worthy of the same status as the first wife and her husband would not benefit from their marriage as much as he does from his first, leading again to financial loss and a sense of inferiority.

The message of inferiority running through these two cases is both orientalist and patriarchal. The wives have been othered and subordinated through their depiction as a burden on everyone because their polygamous marriage is not suited for the welfare state's construction and regulation of marriage. When compared to the much earlier Bethell,Footnote ³⁷ it is also noteworthy that, whilst judicial attitudes towards recognition have evolved, the courts’ aim remains the same at this stage: to deny relief and assistance to polygamous wives and their children. The problematic discourses surrounding polygamous marriages are still present in the case-law at this stage and are negatively impacting upon women who engage in polygamy.

3.3 Late 1990s: potential for progress?

As we move closer to the present day, the courts appear to be more accustomed to dealing with polygamy. During this period, the statutory framework also developed to reflect the judicial tolerance for potentially polygamous marriage with section 5(1) of the Private International Law (Miscellaneous Provisions Act) 1995. As a result of section 5, potentially polygamous marriages are now not automatically void, unlike actually polygamous marriage.

The case-law further indicates a willingness to protect the interests of individuals in polygamous marriages. For example, in R v. Department of Health Ex p Misra,Footnote ³⁸ the two widows of a doctor who were both lawfully married in India were equally entitled via extra statutory concession to a pension under Regulation 14(1) of the National Health Service (Superannuation) Regulations 1980.Footnote ³⁹ Consequently, the existing pension amount was divided equally between the two wives. No additional support was to be given to one over the other and, even if one wife were to pass away, her share would not be given to the other wife.

Misra Footnote ⁴⁰ is a fascinating development in the recognition precedent because the marriages were held valid for the purpose of awarding pensions to both widows. There was no agenda for protecting monogamy or preventing the abuse of public funds and the rights of these polygamous widows were recognised and upheld so that ostensibly they may benefit. The courts are generally more focused on the money rather than the polygamous wife claimant but they are still willing to uphold her interests provided there is no conflict with state interests. There is no explicit reasoning for the superannuation scheme providing for polygamous widow pensions but delving into NHS history provides some explanation. Snow and Jones (Reference Snow and Jones2011) state that a national shortage of doctors by the 1960s led to overseas recruitment from former British colonies. In recruiting such a large proportion of staff from nations with a history of polygamy, the NHS could have expanded the scheme as an incentive to accommodate immigrant personnel. This case is significant because it shows that the courts are capable of dealing with polygamous marriage without being openly sexist, racist, imperialist or orientalist.

Despite this positive change, another concurrent harmful attitudinal discourse reinforces the inferior status of polygamous wives. The two wives here were still penalised because one wife's half of the pension was non-transferable to the other upon death. Thus, unlike a monogamous wife, a polygamous wife is only eligible for half a pension, which is damaging. The monogamous wife and her marital choice remain privileged and she is rewarded for her conformity to the dominant Western paradigm. Polygamous wives are denied access to a whole pension, demonstrating the disparity of treatment in the courts based on the imperialist perception that a polygamous marriage has a fraction of the value of an ideal monogamous marriage.

Bibi v. Chief Adjudication Officer Footnote ⁴¹ continues along this vein of putting state interests and monogamy first. Here, the widow of a Bangladeshi Islamic actually polygamous marriage was denied any claim to widowed mother's allowance under section 25 of the Social Security Act 1975 and the Social Security and Family Allowances (Polygamous Marriage) Regulations 1975 because the provisions only applied to the widows of potentially polygamous marriages.

Interestingly, Ward L.J. was persuaded by the argument from the earlier Imam that ‘It would clearly be wrong for a man paying contributions on the basis indicated to reap benefits in respect of perhaps three or four current wives’ (Imam, 1967, p. 221).

Bibi v. Chief Adjudication Officer Footnote ⁴² concerns a widowed mother's allowance and as, unlike Imam,Footnote ⁴³ the husband in this instance was deceased, I question his reaping the benefits. By focusing on the man, the widow and her needs were side-lined based on her polygamous marriage. Polygamous widows are left to suffer the consequences because the court deems it ‘wrong’ to divide their deceased husband's social security contributions between them. Women are again placed in a position of inferiority: they are made to feel like an unfair burden on the state because of their non-monogamous marriage. Thus, although some progress occurs in Misra,Footnote ⁴⁴ polygamous marriages are still being recognised to protect state interests and idealise monogamy. This leads to the conclusion that underlying attitudes and approaches towards polygamous marriage have changed less than it would seem at this stage and are affecting women the same way that Teepoo was affected over a century earlier.Footnote ⁴⁵

3.4 The 1990s through to the present day: immigration and human rights

More recently, cases on polygamy have mainly arisen in an immigration context. Judicial discourse is less openly imperialist and orientalist, with the courts preferring the ‘protect public interests’ approach. As illustrated in the above section, the preservation of monogamy is a modernised form of imperialist and orientalist thinking, as women in polygamous marriages are subordinated by being positioned as a burden on the state. In existing research, Beaman (Reference Beaman, Calder and Beaman2014) identifies the use of idealised monogamy as the comparator against which polygamy is measured and found wanting. Due to their marriage running contrary to monogamous ideals, women are orientalised by the assumption that their arrival in the UK will be problematic for the state.

Recent cases tend to involve the refusal of entry into the UK for second spouses or children from second or third marriages. Polygamous marriages in this instance are not considered recognisable for the purposes of granting leave to remain in the UK, but they are considered recognisable for the purposes of preventing the entry of multiple spouses. The immigration framework refuses to grant a right of abode in the UK to a man's second wife if his first wife is already exercising such a right in the UK and this echoes the focus on polygamous marriages to deny legal relief and remedy discussed above in relation to successionFootnote ⁴⁶ and welfare benefits.Footnote ⁴⁷

This limitation on the number of wives that can claim a right of abode is another imperialist and patriarchal method of preserving monogamy in the UK, although the effectiveness is questionable because a man is not prevented from having multiple wives abroad. The impact of this is illustrated in R v. Immigration Appeal Tribunal and Secretary of State for the Home Department Ex. p. Begum (Hasna) Footnote ⁴⁸ in which it is stated that the appellant:

As a result of her marriage, Hasna Begum was living in a difficult situation away from her husband, whilst he lived with his first wife and their children in the UK. The reference to ‘shame’ is also telling, as it unearths another form of harm to women in polygamous marriages that is not as prevalent in existing literature. In Section II, I explored the concept of harm as a tool to promote negative perceptions of polygamy, with scholars like Kaganas and Murray (Reference Kaganas and Murray1991) concluding that patriarchy is the real harm. I situate the applicant's shame for living with her maternal family as a form of harm resulting from patriarchal legal attitudes towards polygamy.Footnote ⁴⁹ Begum Footnote ⁵⁰ shows the consequences suffered by a woman who has been legally married in a polygamy-permitting jurisdiction. Despite having official recognition in Bangladesh, her refusal of entry left her to live as a single woman supported by her brother. It is understandable that a wife would desire to be with her husband in the UK and it must be a source of suffering for her to live without him because she has been refused entry by the immigration authorities. In addition, the emotional impact of being labelled as a source of ‘shame’ for living like this cannot be underestimated.

Several attempts have also been made to invoke the European Convention on Human Rights (ECHR) in the UK regarding respect for private and family life, the right to marry and the prohibition on discrimination. One of the earliest indications of the judicial approach to human rights in polygamy is found in Bibi v. UK.Footnote ⁵¹ The applicant complained that her right to respect for family life was infringed under Article 8 ECHR by the UK's refusal to allow her polygamously married mother into the UK. She also argued that her mother was discriminated against on the grounds of sex because her father was allowed to choose which of his wives would live with him in the UK.

It was held that there was an Article 8(1) infringement that was justifiable under Article 8(2) because the mother's exclusion:

There was no finding of discrimination, as the exclusion stemmed from polygamy, for which the UK was not answerable under the ECHR. This shows that preserving monogamy is a legitimate aim, even at the European level, and is demonstrative of the pervasive Christian and Western imperialist ideals that govern English and ECHR legal responses to polygamy. Additionally, by situating the aim under the protection of morals, the court indicates that polygamy impacts upon public morality. The assumption that public morals would be affected is indicative of an underlying imperialist and orientalist message that polygamy is only practised by the immoral based on knowledge of the practice from a Western perspective.

A few years later, it was alleged in Khan v. UK Footnote ⁵² that the UK government had infringed the Article 8 ECHR rights of the applicant by refusing his second wife entry when his first wife was already resident in the UK. Although the application was deemed inadmissible, the government did argue that the second marriage has not been prevented by UK law in this case and the refusal of entry for the second wife is partially justified by the assertion that the multiple husbands of a polyandrous woman would not be permitted entry and stay, as it would ‘not be conducive to the public good’.Footnote ⁵³

This is the first mention of polyandry in the case-law and there is no explanation or justification for the statement made, providing the impression that the state is trying to demonstrate an equal approach to both polygyny and polyandry. Interestingly, this case represents a shift in attitudes reflecting the consciousness of sex discrimination. Throughout the case-law, polygamous marriages that have mostly been polygynous have been orientalised and held up to Western idealised standards of monogamy (Beaman, Reference Beaman, Calder and Beaman2014). By contrast, in Khan v. UK,Footnote ⁵⁴ a polygyny vs. polyandry stance has been adopted to justify the refusal of entry for any polygamous spouse. In addressing polyandry, the UK endeavours to avoid claims of sex discrimination under Article 8 ECHR, as it would refuse entry to all individuals in polygamous marriages regardless of their gender. Thus, the authorities have changed the comparator from monogamous marriage to sex discrimination. Maleiha Malik (Reference Malik2007) explores and problematises the use of comparators in discrimination law, arguing that ‘comparison is too individualistic and does not take sufficient account of the social context’ (p. 79). In reality, polygyny is far more prevalent than polyandry and women are more affected by judicial attitudes towards polygamous marriage than men, indicating that this constituted a deliberate strategy to construct a comparator that was harder to challenge.

The phrase ‘not be conducive to the public good’Footnote ⁵⁵ is further problematic because it signifies the priority given to public interests as the UK government authoritatively asserts that the public would be negatively affected by a polyandrous husband being granted entry into the UK. Employing the ‘public good’ justification shows that polygamy is still being othered based on orientalist knowledge that it is contrary to the public good. This links with the welfare cases explored above where women in polygamous marriages were portrayed as a strain on the state because their residence in the UK impacted upon public resources and finances. Thus, women in polygamous marriages are constructed in terms of their difference to the mainstream version of marriage in the UK and suffer as Hasna BegumFootnote ⁵⁶ did.

Similar attitudes are displayed towards the offspring of polygamous marriages who seek entry and stay in the UK. Entry was denied to the daughter of a man and his third wife in ECO New Delhi v. SG,Footnote ⁵⁷ as:

These statements echo Bibi v. UK Footnote ⁵⁸ above, displaying the continued theme of preserving monogamy and deterring polygamy. It is legitimate to exclude a polygamous wife and by extension her children and the refusal of a child's entry is therefore tied up with that of its polygamously married mother. In keeping with the imperialist theme of preserving monogamy, the courts are willing to recognise the existence of polygamous marriage again to serve the interests of immigration rather than the desire of the wives and children affected.

Later, in the ECO New Delhi v. SG Footnote ⁵⁹ judgment, Blake J. mentions that:

The question of morality and polygamous marriages arises again in this very recent case displaying the presence of orientalist discourses in current case-law. At several points before this statement is made,Footnote ⁶⁰ it is stressed that the child was not denied entry because of her parents’ marriage, but because she failed to meet the relevant criteria in the Immigration Rules. This therefore provokes the question of why it was necessary to explain and commend the discouragement of polygamous marriages ‘in Nepal or elsewhere’.Footnote ⁶¹ The authoritative commentary on polygamy and its danger to gender equality is orientalising despite existing research showing that patriarchy transcends marital structure.Footnote ⁶² Monogamy does not guarantee gender equality and to assume so is damaging for all married women. These recent immigration and human rights cases continue to perpetuate the same problematic discourses that have been appearing throughout the case-law for more than a century, the only difference being that there are fewer explicit discursive markers. The language may have changed but the same imperialist, orientalist and patriarchal influences prevail, causing women in polygamous marriages to suffer greater harm because of their marital status.