Should Bigamy Continue to Be a Crime?

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Wedding ring

The practice of being in a relationship with numerous spouses, or ‘polygamy’, is an integral part of many traditional cultures around the world.

It is practised in several Asian, African and Middle Eastern cultures – and even in Mormon communities in the United States and Indigenous communities in Australia.

But despite its widespread acceptance in other nations, bigamous or polygamous marriages are against the law in Australia and those who engage in the practice may face heavy penalties.

Those who wish to practice polygamy in Australia have called on the government to relax the laws in this area, but the government remains unmoved, with former Attorney-General Robert McClelland famously declaring that ‘there is absolutely no way that the Government will be recognising polygamist relationships.’

What Does the Law Say?

In New South Wales, polygamous relationships are regulated under the Crimes Act 1900 (NSW), the Marriage Act 1961 (Cth) and the Family Law Act 1975 (Cth).

Under section 92 of the Crimes Act, it is an offence to be married to two or more people at the same time. This is known as the offence of ‘bigamy,’ and it carries a maximum penalty of seven years imprisonment.

However, a defendant will be found not guilty if they can prove that their first spouse has been continually absent for seven years, or that they have been continually absent from New South Wales for at least five years and are presumed to be dead.

A person can also be charged with participating in bigamy under section 93 of the Crimes Act where they marry someone who they know is already married to another person. A person does not have to be already married themselves in order to be charged under section 93. This attracts a maximum penalty of five years imprisonment under the law.

Section 94 of the Marriage Act 1961 essentially mirrors sections 92 and 93 of the Crimes Act, stating that it is against the law to be married to two or more people at the same time, or to marry someone who you know is already married. The maximum penalty is five years imprisonment, but defences similar to those under the Crimes Act may be raised.

What About if you were Married Overseas?

For those who have already married two or more people before coming to Australia, the law offers some reprieve. Under section 6 of the Family Law Act, polygamous marriages entered into outside Australia are still recognised as valid marriages. However, those involved in such marriages may face issues under migration law when wanting to bring multiple spouses into Australia.

It should be noted that it is perfectly legal in Australia to have a wife and a de-facto partner simultaneously – or even several partners – as long as you are not legally married to more than one person at the same time. To this extent, polygamous relationships are legal in Australia; while adultery – which is having sex with someone other than your spouse when married – is no longer a crime.

But the existing position under Australian law makes regulating polygamous relationships extremely difficult, and family lawyers suggest that cases involving polygamy are rare. De facto partners are still entitled to property in the event of a relationship breakdown, and current laws can make it hard to divide up property and determine residence and contact of children.

The Case Against Polygamy

In a similar vein to the same-sex marriage argument, the question of whether or not we should be able to have numerous spouses sparks fierce debate.

At one end of the spectrum are those who argue that polygamous relationships can have harmful consequences on those involved. Several overseas studies have found that women in particular can experience feelings of neglect and jealousy, which can even develop into mental health conditions such as depression.

Some experts also argue that children whose parents are in a polygamous relationship may experience feelings of isolation and come to resent parents who are not dedicated to a single family. Children may also suffer embarrassment at school when attempting to describe their familial situations to others.

But perhaps the most commonly espoused argument against polygamy is that it impinges upon women’s rights. Opponents say that they are often arranged without any regard for a woman’s wishes – and in, many cases, there may be a huge age gap between the man and the woman.

Furthermore, religion and cultural customs generally allow men to have several wives at the one time, but women are generally only allowed to have one husband.

Opponents of polygamy argue that these traditions can isolate women financially and emotionally. In many cultures which practice polygamy, women are expected to stay at home and perform housework, while the man acts as the sole breadwinner. Complications can arise where the man is unable to provide for several families at the same time – or where the male wishes to divorce one of his wives, leaving her to raise a family without any financial support.

The Other End of the Spectrum

On the other side of the argument are those supporting the idea of polygamy who argue that it can form the basis for loving relationships. These people generally express the view that consenting individuals should be free to enter into a relationship (or relationships) without government interference.

They also point out that anthropologists estimate that 85% of cultures permit polygamous marriage, but it is only legal in around 25% of countries around the globe.

Those in support of polygamy also argue that the practice recognises that, simply due to our nature, humans are inclined to enter into multiple relationships. And, of course, many people in Western society do have multiple partners in the form of extramarital affairs – but these are generally kept secret for fear of hurting others.

Supporters also claim that polygamy promotes honesty and candour in relationships, rather than a culture of lying and deceit.

These people are also quick to dismiss the view that women have limited rights in polygamous relationships – arguing that women and their children are lovingly cared for, and may even enjoy having a large family. Some even argue that regulating relationships essentially impinges upon a woman’s right to voluntarily enter into such relationships – or even take on multiple partners if she so desires.

Conservative commentators have frequently espoused the view that allowing polygamy would ‘endanger the Australian way of life,’ but ironically polygamy is practised in many Indigenous communities around the country such as Arnhem Land in the Northern Territory.

At the end of the day, it is important to remember that polygamy is not exclusively a cultural or religious practice. Although it may be more prevalent in some social circles, people from all walks of life have been known to engage in polygamy. And with views towards sex and relationships becoming more liberal, perhaps the time is ripe to let people freely choose what kind of relationship they want.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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