Polygamy and Capacity to Marry
| Author | R. D. James |
| Published date | 01 September 1979 |
| Date | 01 September 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01551.x |
POLYGAMY AND CAPACITY TO MARRY
THE question of the capacity of an English domiciliary to contract
a
polygamous marriage is one of practical importance. This is most
obvious in the case of a person of English domicile who marries in
a
jurisdiction where the marriage is regarded as potentially poly-
gamous and who then returns here to live. This eventuality is far
from unlikely in view of the large numbers of immigrants from
countries where polygamy
is
possible who are now domiciled here.
What is the position when such a person visits his country
of
origin
in order to marry, the marriage being potentially polygamous by
the local law, and then returns with his spouse to this country?
The Matrimonial Proceedings (Polygamous Marriages) Act
1972,
s.
4
purported to resolve the issue; it has now been re-enacted in
the Matrimonial Causes Act
1973,
s.
11
(4,
which provides that
a
polygamous marriage entered into outside England and Wales after
July
31,
1971,
shall be void if either party is at the time of the
marriage domiciled in England and Wales. It is difficult to see why
it was thought desirable that such marriages should be void; on the
contrary such
a
result would be most unfortunate.’ In this article it
will be submitted that reasoning not related to social desirability
was mainly responsible for the enactment of this provision; an
analysis
of
this reasoning will be made and suggestions put forward
for reform of the present rules.
However, owing to the decision in
Radwan
v.
Radwan
(No.
2),a
a
certain amount of doubt exists about the effect of section
11
(d).
In that case the question arose of the validity of a marriage cele-
brated in
1951
at the Egyptian Consulate-General in Paris between
a domiciled Englishwoman and
a
domiciled Egyptian. Before the
marriage the parties had decided to establish their matrimonial
home in Egypt and they did
so
after
a
short visit to England. The
marriage was valid and polygamous by Egyptian law; indeed it was
polygamous in fact, as the husband was already married to an
Egyptian woman at the time
of
the Paris wedding, though he
divorced her some nine months later. In
1956
the parties moved
to England and in
1970
the wife commenced divorce proceedings.
Cumming-Bruce
J.
held that the marriage was valid; the question of
the wife’s capacity was to be decided by reference to Egyptian law,
as
Egypt was the country of the intended matrimonial residence by
virtue of the parties’ ante-nuptial decision. The marriage was there-
fore valid, though polygamous, and the wife’s pre-marriage English
domicile made no difference, In deciding to which law the question
1
The undesirability
of
the
rule
is
pointed out with
force
by T.
$.
Hartley,
“Polygamy and Social
Policy
’’
(1969)
32
M.L.R. 155, 159 and The Law
Commission: Report
on
Polygamous Marriages
”
(1971)
34
M.L.R.
305,
306.
2
[
19721
3
All
E.R. 1026.
533
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