Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada

63 Pages Posted: 13 Mar 2021

See all articles by Martha Bailey

Martha Bailey

Queen's University - Faculty of Law

Beverley Baines

Queen's University - Faculty of Law

Bita Amani

Queen's University - Faculty of Law

Amy Kaufman

Queen's University

Date Written: September 23, 2005

Abstract

This report assesses Canada’s laws on the recognition of valid foreign polygamous marriages, arguing that the principle of “universality of status” should be given effect. A valid foreign polygamous marriage should be recognized and given effect to the extent that recognition does not violate Canada’s essential “public policy.” There is a strong association between polygamy and gender inequality, and a fundamental concern is whether either recognizing or failing to recognize valid foreign polygamous marriages would harm women. This report takes the view that the rights of women in valid foreign polygamous marriages should be protected by extending recognition to those marriages. It is the position of this report that recognition would not imply endorsement of polygamy or the gender inequality associated with the practice.

Recognition of valid foreign polygamous marriages raises the issue of how Canadian law should respond to “plural unions” entered into within Canada in some religious communities. The law does not consider such unions to be marriages. They are legal nullities. No civil legal consequences result merely from the fact that the parties went through a religious ceremony. There are, however, criminal consequences. Section 293 of the Criminal Code criminalizes polygamy and by its terms applies both to those who enter into a plural union within Canada and to parties to a valid foreign polygamous marriage who “practise” polygamy within Canada. This report examines the history, efficacy and constitutionality of s. 293 of the Criminal Code and recommends that this provision be repealed.

Finally, this report considers arguments for and against permitting polygamous marriages to take place under Canada’s domestic laws, specifically, the constitutional arguments that could be made. The report recommends that Canada prepare for a constitutional challenge to the limitation of marriage to two persons.

Keywords: Polygamy, Women, Canada

Suggested Citation

Bailey, Martha Jane and Baines, Beverley and Amani, Bita and Kaufman, Amy, Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada (September 23, 2005). Available at SSRN: https://ssrn.com/abstract=3771981 or http://dx.doi.org/10.2139/ssrn.3771981

Martha Jane Bailey

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

Beverley Baines (Contact Author)

Queen's University - Faculty of Law ( email )

Kingston, Ontario K7L3N6
Canada

Bita Amani

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

Amy Kaufman

Queen's University ( email )

Kingston, Ontario K7L 3N6
Canada

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