POLYGAMOUS MARRIAGES
| Author | G. W. Bartholomew |
| Published date | 01 January 1952 |
| Date | 01 January 1952 |
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb02108.x |
POLYGAMOUS MARRIAGES
RECENT
decisions on polygamous marriages present an oppor-
tunity for the re-examination of the problem of polygamy as
it
arises in the English courts.
(1)
the concept of polygamy should be defined
so
as to include
only those marriages where there is a
de
jacto
plurality of
wives
;
(2)
the potentially polygamous character of the marriage should
be determined by the
lex
domicilii
of the husband.
The view usually accepted today is that the English courts
will,
for certain purposes, accord recognition to potentially polygamous
marriages.2 This attitude represents a recognition of the limited
character of the judgment
of
Sir James Wilde (as he then was)
in
Hyde
v.
IIydeY3
in which an Englishman petitioned for the dis-
solution of his marriage which had been contracted according to
Mormon rites in Utah.
His
wife, whom he had left in Utah, when
he returned to this country, divorced him according to Mormon
rites and contracted a second Mormon marriage. Sir James Wilde
refused to grant the relief sought, on the ground that a Mormon
marriage was potentially polygamous, and that the matrimonial
jurisdiction of the English courts only extended to Christian
marriage, which he defined as
cc
the voluntary union for life of one
man and one woman to the exclusion of all others.”4 He thus
assumed that the fact that the marriage was potentially polygamous
was sufficient to take
it
out of the definition. Although the courts.
no longer interpret Sir James Wilde’s judgment as meaning that.
no recognition at all can be accorded to a potentially polygamous
marriage, they still apparently adhere to his view that a marriage
is polygamous
if
it
is merely potentially
so.
Quite apart from other considerations it should be noted that
the definition of marriage adopted by Sir James Wilde did not
logically necessitate
his
treating Hyde’s marriage as polygamous.
So
far as Hyde was concerned his #marriage was a voluntary union
of one man and one woman to the exclusion of all others, in that at
the time
of
the proceedings, he was a
de
jacto
monogamist, and
had been
so
throughout his married life. Further it may be
pointed out that in treating Hyde’s marriage as polygamous and
refusing to grant
it
recognition, Sir James Wilde was ignoring the
It
will be submitted that,
1
.2
3
4
Risk
v.
Risk
[1950] 2
All
E.R.
973;
Malrcr
v.
Maher
[1951]
P.
342.
Cheshire,
Private International Law,
p.
404.
ed.),
p.
224.
Intcrnational Law,
p.
325.
(1866)
L.R.
1
P.
&
D.
130.
At
p.
133.
Dicey,
Conflict
of
Laws
(6th
Schmittlioff,
English
Conflict
of
Laws,
p.
292.
Wolff,
Priuato
a5
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