Q: I’ve been reading about the raid in Texas, with the seizing of children from multiple marriage families. Isn’t being married to more than one person illegal? Yet I’m reading about these men with six or seven wives and many children. How does this happen?
A: In Canada, it is illegal to go through a form of marriage if you are already married to someone else. The Criminal Code makes this an offence.
What many people don’t know is that both parties to the second marriage can be charged. If the new spouse knows the other partner is already married and goes through with the marriage anyway, he or she can be charged under our criminal law.
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Also, if you’re a Canadian citizen who normally resides here and you go to another country where multiple marriages are legal, you can still be charged with bigamy in Canada.
There are some “good faith” exceptions. For example, if you marry again genuinely believing your spouse is dead, only to later discover your spouse is alive, you are not guilty of a criminal offence. This is also true if your spouse has been missing for seven years (unless you actually know your spouse is alive), or if your first marriage has been declared void by a court order.
Polygamy, or being married to more than one person at the same time, does occur in Canada.
Bountiful, B.C., is home to religious organizations that practise polygamy and seemingly are immune from prosecution under our criminal law.
So it’s a fair question when the reader asks how this is done, given that it’s illegal. If this is happening and the authorities know it, why aren’t all these people being prosecuted?
One problem is that the Criminal Code requires that the persons involved go through a form of marriage. Certain polygamous sects involve a person, usually the male, going through one legal marriage, but having multiple wives assigned to him. There is a question created about whether there has been a form of second marriage, making bigamy tougher to prove.
This is an obstacle that public prosecutors have had to grapple with in assessing whether charges are possible. To carry through with a charge in court a prosecutor has to feel there is a substantial likelihood that a conviction can be obtained.
In some parts of the United States, officials have dealt with this problem by amending the law. They have made it illegal for a person who is married to live with another person in a relationship that has the same features as a spousal relationship.
However, a practical difficulty remains. Most of these polygamous communities are closed to outsiders and people simply will not talk. There is often retribution to those who break silence. Their jobs, homes, families and social status are stripped from them and they believe their souls are endangered by breaching the teachings of that religion.
It is therefore difficult to gather evidence that will assist in leading to a conviction.
There is a strong social policy argument behind the banning of polygamous marriages or relationships. Studies have shown that these communities tend to have substandard educational opportunities and health care. They are frequently male-dominated, and women’s rights are trampled. Often the new wives being assigned are girls of 13 to 15 years of age, being given to men in their 40s through 60s. A marriage implies a lifetime commitment by both parties. Can a 13-year-old girl truly consent to marry a man 40 years her senior?
Experts widely denounce these arrangements but are met with arguments about freedom of religion and association. People leaving these towns often have trouble adapting to life in mainstream society.
There are, however, a number of courageous women who have left these social structures, established themselves and are assisting others to break away.
While the law in this area is straightforward, enforcing it is not. There are many social issues and debates stemming from multiple marriages when they are part of an organized religious group. This is an issue that will continue to be in the press, and which may require the Canadian government to revisit its laws on bigamy.
Re: squatter’s rights
In my April 3 column I talked about adverse possession, or squatter’s rights. This column created a large response and some confusion, which brings about two observations.
The letters and calls received prompt me to point out that this column is for general information and is not designed to provide specific legal advice. It goes to readers across Western Canada and throughout the country. There is significant variation in laws from province to province.
Always consult a local lawyer concerning your rights.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
