A contextualised historical account of changing judicial attitudes to polygamous marriage in the English courts

Abstract

AbstractWhilst much of the literature focuses on debating polygamy as a harmful practice, the purpose of this paper is to consider a different form of harm by exploring judicial responses to this relationship and the women who engage with it. Over the years, the courts have been faced with numerous questions on the recognition and regulation of polygamous marriages. Commencing with an overview of existing literature on polygamous marriage, I situate and explain the post-colonial feminist-inspired conceptual framework that underpins my judicial discourse analysis of English case-law in this area spanning from 1866 to the present day. A post-colonial feminist lens exposes the racist, orientalist, imperialist and sexist attitudes permeating judicial language in relation to polygamy and its participants. These patterns of discourse subordinate women in polygamous marriages, leaving them in a vulnerable position. With time, these discourses seemingly fade but, through a closer reading of recent cases, it becomes evident that they are still present, albeit in a subtler form as a matter of public policy, morality and ‘good’.