by Paul Esau (Contributor)
Polygamy – it’s a fancy word for a custom that most North Americans find repulsive, and for which laws have been introduced to stamp it out.
Would it be surprising then, to learn that last week a speaker at UFV advocated the acceptance of polygamy? Would it be even more shocking to learn he wanted to include it under the current legal system?
The speaker was Dr. Jan Neels, a professor at the University of Johannesburg. His presentation was on the recognition of Hindu and Muslim personal law within South Africa, and polygamy provided the catalyst for the issue, rather than being the issue itself. While his solution does include legal acceptance of polygamy, it is because he believes it to be a legal necessity within the cultural and religious framework of South Africa.
According to Dr. Neels, about 2% of the South African populace practices polygamy. Legal considerations exist for the practice among indigenous communities, but it has long been unaddressed among other practitioners (generally Hindus and Muslims). While polygamy is unlawful in South Africa, the law is rarely enforced because of the religious nature of the practice. This “blind eye,” Dr. Neels argues, creates a problematic situation within the Hindu and Muslim communities involved, because it forces the law to ignore multiple “religious” marriages.
A man may, in reality, have four wives, but only the first one is recognized by the state. This meant – until the implementation of recent legislature – that in the event of his death or divorce of one or more of those wives, his property was only divided among those relations officially recognized by the state. The death of a husband could therefore leave his wives entirely dependent on his initial spouse and her children. Divorce of a wife married under religious rather than state sanction was even easier, given that the marriage never officially existed in the first place.
Neels concluded that a revision of the marriage laws is needed to protect “the weaker socioeconomic party” within the context of polygamous marriage. Although minor revisions have been made in recent years, the marriage laws still only recognize monogamy in Hindu and Muslim contexts, and Dr. Neels believes full recognition rather than qualification of polygamy is necessary to provide this protection. Only with the full application of secular law can the courts successfully arbitrate domestic and family issues within polygamous communities.
The ability of the law to adapt to religious and cultural rights is restricted by the necessity of retaining the foundational principles of freedom and equality. The law of a country must therefore be considered a balance between the rights of the individual to retain their socio-religious practices and the right of the courts to enforce constitutional practices.
Ironically, the act necessary to enforce human rights within these communities destroys it in others. The South African courts argue that polygamy is a direct violation of the constitutionally-given right to “equality between genders,” and therefore cannot be made lawful. Of course, it is another constitutional right, that of “freedom of religion,” which justifies the polygamy debate in the first place, and must be dutifully recognized. The question of contradiction between these two constitutionally guaranteed rights is something even Dr. Neels could not fully resolve.
“Don’t sacrifice constitutional rights on the altar of multiculturalism,” Neels warned. However, it would appear that the realities of life in countries such as South Africa dispute that idiom.
