Laws governing polygamy in
Canada and other countries
The following essay is for general information only. Do not use it to make
any personal decisions without first consulting a lawyer knowledgeable about
family law in your country.
The Criminal Code of Canada is in force in every province and territory in Canada.
Right after Section 289 "venereal diseases," -- now called STDs and STIs -- which has been repealed, comes a
series of "Offences Against Conjugal Rights." Section 290 discusses
bigamy. Section 293 covers polygamy. The latter states:
Every one who:
(a) practises or enters into or in any manner agrees or consents to practise or
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite,
ceremony, contract or consent that purports to sanction a relationship mentioned
in subparagraph (i) or (ii), is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in
the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.
Section 293 was added to the Criminal Code in the late 19th century,
allegedly to keep Mormons out of Canada. No charges have been laid under this
law since the late 1940s. 5
It is unclear to us, from a literal interpretation of the section 289, how it would
One man and two or more women participating in a marriage-like commitment
Five adults engaging in a ritual to sign an agreement to
create an intentional community.
A group of university students of both genders signing a joint lease on a
house in a student ghetto, in the expectation that some sexually active relationships may well develop among the group.
A man who is married to one woman and has carried on a long-term
adulterous relationship with another.
Polygamy has been openly practiced in British Columbia
(BC) for many decades by members of the Fundamentalist Church of Jesus Christ of Later Day Saints (FLDS), which is a small faith group that broke away from the main Mormon group, The Church of Christ of Latter-day Saints.
It is less openly practiced by a minority of Muslim
families scattered across Canada. In 2008-MAY, a Toronto imam, Aly Hindy, told the
Toronto Star that he had officiated at or "blessed" more than 30 polygamous marriages
over the past five years. 3
Brian Hutchinson of the National Post newspaper commented on
"... some legal scholars say it is unfair, illogical and anachronistic."
"Written in 1892, Section 293 prohibits individuals from entering into a
'conjugal' relationship with more than one person at a time. This applies
formal marriages as well as common-law relationships, but not to adulterous
"In other words, it's a crime to have more than one 'spouse,' as loosely as
that term is now defined, but it's not a crime to have intimate relationships
with more than one partner, simultaneously. Still, there is no popular
movement afoot to strike or alter the existing law."
"Until recently, there's been little desire to apply it. For years, legal
experts and special prosecutors have advised B.C. attorneys-general not to lay
polygamy charges in Bountiful, on grounds that Section 293 would not survive a
constitutional challenge. Canada's constitution, the Canadian Charter of Rights and Freedoms,
guarantees religious freedom, within reason. It has been the opinion of many
scholars that polygamy, as it has been practiced for decades by
Fundamentalist Church of Jesus Christ of Latter Day Saints members in
Bountiful, would survive the legal test of reasonable religious practice."
If Section 293 were declared unconstitutional because it unduly restricts
religious practice, there is a good chance that the federal government might
invoke the "not-withstanding" clause to
re-criminalize polygamy. This is a very unusual and rarely invoked clause -- that is perhaps unique worldwide -- in the Canadian Constitution that allows governments to pass laws and establish regulations that violate the Constitution.
This clause, to our knowledge, is unique in the world. It enables the federal
government or a province to pass legislation that knowingly violates the
Canadian Charter of Rights and Freedoms -- Canada's constitution, as long as
the bill states that it is in direct conflict with the Charter, and as long as a
new not-withstanding bill is passed every five years. It has been used only
once: Quebec passed Bill 101: the
"Charter of the French Language" in 1977. It banned commercial signs written
in English on the exterior of stores, even if the proprietor and public prefer
In 2009, a reference case was filed with the British Columbia Supreme Court to test the constitutionality of Section 293 of Canada's Criminal Code -- Canada's anti-polygamy law. The court ruled that the law, as applied to the fundamentalist Mormon form of polygamy is constitutional. However, Chief Justice Bauman commented that an egalitarian form of polygamy called polyamory, that does not include the various forms of abuse found in fundamentalist Mormon types of polygamy, should be legal as long as the persons involved refrain from celebrating marriage ceremonies.
Laws concerning polygamy in other countries:
In predominately Islamic countries, Most Muslim authorities interpret the sayings of
Muhammad as permitting men to marry up to four wives each, as long as he
can treat them equally and be able to afford a reasonable quality of life for all. They have patterned this belief on the life of the prophet Muhammad who founded Islam. He married four women during his lifetime. However, some Muslim clerics consider that Muhammad's example is a special case and that polygamy is only acceptable under unusual circumstances. They regard Muhammad's decision to have multiple wives legitimate because he had married the widows of his comrades who had died during battles.
Polygyny -- the marriage of one man and multiple women
-- continues to be practiced in many predominately Muslim countries. However,
such marriages remain in a minority. Polyandry -- the marriage of one woman and multiple men
-- is forbidden.
Norway, Britain, and some other European countries are making some allowances for the
practice of polygyny among their Muslim families. Most of them had been married in North Africa, the Middle East, or the Far East and later immigrated
to the West -- some as regugees.
In Malaysia, thousands of Muslim husbands successfully applied to Shariah courts to marry a second or subsequent wife between 2010 and 2016.
There have been concerns in the country about wives and children in polygamous families being poorly treated. Datuk Wee Jeck Seng, a member of the Parliament of Malaysia, asked the Prime Minister for statistics on polygamy broken down by states.
Jamil Khir Baharom of the Prime Ministerís Department responded, saying that:
"Based on the record of Shariah courts across Malaysia, 8,808 cases of applications from husbands who are eligible and capable have been given permission to polygamy between 2010 and 2016." 6
Among the states of Malaysia, there are varied requirements before a license can be issued. Some states have no limitations. Others stipulate conditions, like:
"The proposed marriage must be just and necessary; the husband must have sufficient financial means; the husband will accord equal treatment to the existing wife or wives; and the proposed marriage will not cause danger or harm to the existing wife.
In the UK, an unusual event occurred during late 2011. Emily DiSanto, 25, an American neopagan woman, became pregnant, came to Britain on a visitor's visa, and started to live with the father-to-be and his wife. All three are neopagans and worship a pantheon of Norse deities including Odin and Thor. The court learned that the Caulfields were no longer living as "man and wife" but are sharing a home together. The religious beliefs of the married couple, Alan and Anne-Marie Caulfield, prohibit divorce. Government officials denied Emily's request to stay in the country. She appealed the decision twice and finally won her case on the basis that forcing her to return to the U.S. would violate her human right to a family life. A government spokesperson said:
"We are disappointed by the courtís decision in this case. For too long Article 8 has been used to place the family rights of immigration offenders above the rights of the British public. This is why we will change the immigration rules to reinforce the public interest in seeing those who have breached our immigration laws removed from this country." 7
It is unclear exactly what rights of the British public were bent out of shape by the three adults living together with their two children.