POLYGAMOUS MARRIAGES IN THE CONFLICT OF LAWS

Authors

  • D MENDESDA COSTA

Keywords:

Conflict of Laws, Marriage

Abstract

The paradoxical result of denying effect to polygamous marriages in recent English and Commonwealth cases has been to afford them broad recognition. Accordingly, a spouse of a valid polygamous marriage is not entitled to a declaration that his or her marriage status resides outside of the strictures of a monogamous jurisdiction, for a court in that jurisdiction cannot be expected to foresee under what circumstance or statute the effect of the ceremony should be considered. In Hyde v. Hyde (1866), a “Christian marriage” was contrasted with a polygamous marriage, and it was held that the English courts would not entertain jurisdiction to dissolve a polygamous or potentially polygamous marriage because the machinery of the English matrimonial law was “inappropriate and unavailable.” This has been the rule throughout the Commonwealth. But recent cases have railed against the perceived injustices that its application may produce. Not only is Hyde antiquated in some respects, foreign matrimonial law is clearly capable of being proved as a fact before monogamous jurisdiction courts in precisely the same fashion as any other area of foreign law. Undeniably, there are logistical problems involved in adapting the matrimonial law of a monogamous jurisdiction to polygamous marriages; but there is no good reason why, applying established choice of law rules, regard should not be had to the fact of polygamy in the interpretation of such grounds. But it may be that the Hyde rule is so deeply entrenched that it will be necessary and desirable to abrogate it by statute. At bottom, the time is surely long past for a review (either judicial or legislative) of the Hyde rule.

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Published

1966-05-01

Issue

Section

Legal Commentary