What marriages are polygamous?’ Whether the marriage is to be regarded as monogamous or polygamous must initially be determined by the lex loci celebrationis.: If that law prohibits polygamy (as English law does), all marriages celebrated under it must be monogamous. If a party to such a marriage is permitted to practice polygamy by his lex domicilii, he may nonetheless contract a valid monogamous marriage here provided that he is not already married:’ if he is already married, a marriage contracted in this country will be void as bigamous.’
Conversely. if the lex loci permits polygamy, any marriage contracted in that country by a person whose lex domicilii permits him to enter into a polygamous union will be polygamous. 6 It was at one time believed that if a person whose lex domicilii forbids polygamy went through a polygamous form of marriage abroad, the marriage would be void by English law.’
At first sight section I I(d) of the Matrimonial Causes Act 19738 appears to give statutory effect to this principle by providing that, if a person domiciled in England enters into a polygamous marriage outside this country after 31st July 197 the marriage will be void. In Hussain v however, the Court of Appeal reached the opposite decision. The husband, who was unmarried and domiciled in England, married in Pakistan a woman domiciled in that country. By Pakistani law a man may take a second wife but a woman may not take a second husband. The court held that, as neither party had the capacity to enter into a second marriage whilst that contracted in Pakistan subsisted, the latter was monogamous and therefore valid.
The court was careful to limit its decision to marriages celebrated since 1st August 1971 but the argument applies with equal force whenever the marriage was contracted.’ I Whilst we must await an authoritative decision of the House of Lords, section II(d) appears to apply only if a person domiciled in England marries one whose lex domicilii permits him (or her) to take further spouses in a ceremony designed to produce a polygamous union.
The decision in Hussain v Hussain is to be welcomed because it removes an anomaly. It is not uncommon for members of immigrant communities to return to their family’s homeland to marry, and it would be unjust to recognize the marriage if the husband retained a domicile in, say, Pakistan but not if he had acquired one in England. On the other hand, if a woman domiciled in England marries in Pakistan a man domiciled there, the marriage will still be polygamous (because the husband may take further wives) and therefore void.
This is clearly discriminatory, and the Law Commission recommend that every man and woman domiciled in this country should have capacity to enter into any marriage which is de facto monogamous, even though it is celebrated in a form appropriate to polygamous marriages. If the marriage is polygamous by the test set out above, it is irrelevant that the parties intended to enter into a monogamous union. Their reservations cannot change the legal effects of their act.