Conflict of Marriage Laws - Polygamy

Polygamy

Polygamy may be polygyny (one man having more than one wife at the same time) or polyandry (one woman having more than one husband at the same time) and it has been practiced sparsely throughout history in almost all cultures and sanctioned by various religions where necessary to meet population or economic needs. For example, when disease, war or famine has reduced populations, the taking of several wives has been the solution to restoring population. In some economically poor areas where infant mortality is high but children are a vital source of labor to maintain the earning capacity of the family, polygamy provides more children. Yet, in more modern times, some states have defined marriage as the union of one man to one woman "to the exclusion of all others" and, in some cases, have criminalized bigamy or, as in Canada, have made polygamy an offense under the Criminal Code of Canada. Under s 293(a), everyone who enters into any form of polygamy or any "conjugal union with more than one person at a time" is guilty of an offense, and under s293(b), there is a separate offense for any person who "celebrates, assists or is a party to a rite that sanctions a polygamous marriage".

Other states refer to the current religious practices within their territories as the test for legal acceptability: for example, the Marriage Law 1974 (no. 1/74) in Indonesia does not prohibit polygamy for those religions that allow it (i.e. Islam, Hinduism, Buddhism), but permits it with the consent of the existing wife or wives if:

• there is proof of sufficient financial capacity to maintain all spouses and children;
• there are safeguards that husband will treat his wives and children equally; and
• a court is satisfied that there are valid reasons for wishing to contract a polygamous marriage (e.g., that the existing wife is infertile, has an incurable disease, etc.).

The converse is to be found in the halakhah and the Talmud where the general principle is that, "a woman cannot be the wife of two " (Kid. 7a and Rashi). For a wife, the term kiddushin implies her exclusive dedication to her husband and there can be no kiddushin between her and another man while the first kiddushin subsists. Any purported marriage to another man is thus formally invalid but, nevertheless, requires a get to terminate it. A married man may celebrate a second marriage (and any others) unless he has specifically undertaken to his first wife, e.g., in the ketubbah, not to do so, or monogamy is the local custom. Thus, Ashkenazic Jews who live in Christian nations accepted a takkanah (a rabbinic law not deriving from the Talmud) banning polygamy in c. 1000 CE, while Sephardic Jews who live in Islamic societies have not followed this law.