Abstract
This book provides new insights into cultural attitudes surrounding polygamy and brings Muslim women's voices to the fore. It examines how women who are part of polygamous marriages are viewed by English law and policy, arguing that English legal responses to polygamous marriages are archaic and underpinned by racist, imperialist, orientalist and sexist attitudes. The thesis of the book rests on three original pieces of research; a historical analysis of three key English legislative developments which touch on polygamy (Chapter 3), a judicial discourse analysis of 50 reported cases (Chapter 4) and 26 in-depth semi-structured interviews with women in the United Kingdom presented as a disruptive counterpoint to the attitudes of English law (chapters 5–7).
The book's main contribution is to think about the conditions that have shaped British legal attitudes to polygamy and to consider how women live and view polygamy. Three of the 26 women interviewed: Noreen, Jamilah and Karimah identified as having direct experience of polygamous marriage and their unfiltered stories are directly presented. The work is insightful and critical on the whole, but the author tries to engage with several different critical approaches to law, and at times, the main thread of discussion is lost.
Naqvi presents her critical postcolonial feminist conceptual framework in Chapter 2. She argues that we need to look more widely at the historical and colonial context surrounding polygamy and law. In doing so she draws attention to disruptive voices to construct an alternative account of orientalism and imperialism and to situate present-day conceptions of polygamy and law. Her ambitious framework is a little unwieldy for the reader. She uses a critical lens of feminist postcolonial theory which is applied through two tools – historical consciousness and disrupting dominant narratives. The historical consciousness tool is flexed in chapter 3 where she argues that current legal attitudes to polygamy are rooted in colonial fear. The disruption takes the form of the 26 semistructured interviews with women discussed in chapters 5–7 and by uplifting of counter-narratives and disruptive stories in the existing literature throughout the book.
In Chapter 3 Naqvi outlines the legal framework around polygamous marriages celebrated in Britain, making her case for colonial indifference to polygamy within domestic law and Christian dominance in legal understandings of marriage. This chapter focusses on the Bigamy Act 1604, the Clandestine Marriage Act 1753, and the Marriage Act of 1835 (the substance of which is still in force today in England and Wales as the Marriage Act of 1949). Throughout this chapter, historical consciousness is shown using secondary material, in particular, Rebecca Probert's work, rather than any primary historical research and these limitations of the historical evaluation of polygamy in domestic marriage law are acknowledged by the author.
Naqvi argues that Christian-centric English law was indifferent to polygamy and this indifference became a space for discriminatory power. This analysis is about legal absences in addressing or considering polygamy in domestic marriage law. The 1604 Bigamy Act was passed not to combat polygamy but to deal with serial monogamy in the absence of judicial divorce. The 1753 Act addressed clandestine marriage by making most marriages subject to the same Anglican preliminaries. However, the way in which English domestic law regulates entry to marriage was to have significant consequences for those in polygamous relationships. The 1836 Act gave legal recognition to marriages entered through different types of religious rites. This quirk of English law allows many religions to create legally binding marriages but not all religions are treated the same and some religious marriages fall entirely outside the Act.
Naqvi's synthesis of these three key legal events is that polygamous marriage is at the bottom of a hierarchy in English marriage regulation. Most polygamous marriages which take place in England will have the status of non-qualifying ceremonies, invisible to law without any legal effect. This is because they are created by religious only ceremonies like the Islamic Nikah ceremony that are too far from the template envisioned within the Marriage Act 1949 to be considered as marriages in English law. Such marriages are classed as ‘non-qualifying ceremonies.’ In contrast, other marriages which do not fully comply with the regulatory requirements are not considered valid legal marriages but are more visible to the law and can have some legal effect. These ‘void marriages’ will give rise to a right to apply to the court for financial relief. Where a couple enters into a polygamous marriage outside of England and Wales such marriages are considered void under section 11 of the Matrimonial Causes Act 1973. This interplay between non-qualifying ceremonies and polygamous marriage is complicated and both issues are dealt with as linked problems throughout the second half of the book – the default polygamous marriage discussed is one entered into through a non-qualifying ceremony.
In Chapter 4, Naqvi argues that English law has been openly hostile to foreign polygamous marriages when encountered in the colonial context. Here she engages in discourse analysis of fifty reported cases from 1866 to the current day involving polygamous marriages celebrated overseas. She identifies three court responses to polygamy; denigration where the relationship is seen as inherently different and inferior to monogamous marriage, mutation where a polygamous marriage is converted into a monogamous marriage in the eyes of the law and differentiation where polygamous marriages are recognised for some purposes and not others, often in order to safeguard public resources in social welfare and immigration cases. She argues that throughout this entire time, the British courts had one goal – to preserve Christian monogamy as the status quo. I thought this chapter was stronger in terms of legal analysis but in fairness, it is easier to analyse judicial discussion of polygamy than read into the near-total absence of direct consideration of polygamy in domestic marriage legislation.
The final three substantive chapters draw on semi-structured interviews with 26 women from various religious and cultural backgrounds. Naqvi tells us that these women were recruited to discuss their understanding and attitudes around religious and cultural identity in relation to marriage and polygamy. They are presented as disruptive voices, not generalisable or representative. However, would be helpful to have more information about how they were recruited to understand their interest in the subject of polygamy. Without context, the views might seem arbitrary, but I suppose the point is that they are more relevant than the views of generations of white colonialist English judges.
Using the interviews, Naqvi draws out some of the complexities surrounding women's experiences. Chapter 5 argues that religion and culture are separate bases for identity and the relationship between them is complicated. Naqvi argues that religion can give women the opportunity to challenge and speak out against problematic cultural values; exemplified in Noreen's story about why she is considering becoming a second wife. Chapter 6 opens with Jamilah's experience of violence while married to a man who had a second wife and discusses women's views about harm and polygamy. Naqvi argues that abuse, harm and suffering in relationships are not limited to polygamy. Instead of looking at formal equality, we should look at women's agency within the lived reality of their relationships. Polygamy can be a tool of the patriarchy, but it can also create a space for women's agency. The problem is not polygamy but the patriarchy.
Chapter 7 opens with Karimah's story who travelled to the United Kingdom on a fiancée visa and married in an Islamic marriage ceremony. Her husband refused to register the marriage as a civil marriage. The marriage did not work out and she was granted a divorce from a Shari’a council. Karimah was fighting to stay in the country as a spouse who had suffered domestic abuse but was not recognised as a spouse. Yet if she had married in Pakistan, she would be recognised as a spouse and also have been denied entry to the United Kingdom on the basis of a polygamous marriage. The chapter explores different opinions and understandings about the legal recognition of polygamous marriages.
Naqvi argues against universal recognition of polygamous marriages throughout the book, arguing instead for reform that gives legal recognition to non-qualifying ceremonies under certain circumstances while respecting the rights of those who wish to remain in marriages unrecognised by the law. Naqvi concludes that the women she interviewed are already engaging in disruptive politics of recognition around their relationships. This aspect of the book is a little frustrating and it does seem like the discussion of the desirability of legal recognition is an add-on to the main contribution of the book which is to explore how women in polygamous marriages are viewed by English law. Naqvi's argument against universal legal recognition of non-normative marriages – including religious-only marriages and polygamous marriages – is that recognition can cause harm, non-recognition is not always harmful and that a properly constituted and upheld Nikah can be empowering for women. While it is undoubtedly true that women in Islamic marriages have extensive rights, lived in experience of enforcing marital obligations through Shari’a councils is mixed even in the interviews referenced in the book so this is a comparison of the best experience of Shari’a recognition to the worst-case scenario of civil recognition.
Naqvi frames legal recognition options as easier to satisfy legal requirements on marriage ceremonies or more general rights for cohabitants. This conceptualises legal recognition of non-normative marriages as an all-or-nothing approach, there is no discussion of forms of legal recognition that could be triggered as a safety net if the religious protections of non-normative marriage fail. Naqvi stresses the desirability of the flexibility of non-normative marriage, but it is unclear how recognition in the sense of a financial safety net in the case of breakdown would deny this flexibility to the spouses. In Chapter 4 Naqvi did discuss differentiation in conflict of laws cases namely recognising polygamous marriages for some reasons and not others and charted how this approach had been used in racist and orientalist ways. Ultimately, she does agree that some recognition for non-qualifying ceremonies should be awarded on a case-by-case basis but there is no real engagement with how this could happen in an appropriate way.
Naqvi posits that it is irresponsible to suggest changes to the racist, imperialist, orientalist, and sexist structure of English marriage law. It appears that she would prefer a dismantling of English marriage law and the patriarchy. These are laudable goals, but how to do this is left for another day. Do we need a fundamental change to legal understandings of interpersonal relationships or something even more radical?
My concluding thoughts are that Naqvi's book is important in mapping English legal responses to polygamous marriages and showcasing exactly how archaic and underpinned by racist, imperialist, orientalist, and sexist attitudes they are. The question is where to go from here. Naqvi presents the book as the start of a conversation about how marriage is constructed in English law and whether it can meet the needs of minoritized women. I look forward to the next instalment.
