As we debate the polygamy issue, we shouldn’t exaggerate the distance between polygamy and mainstream forms of family.
Yes, on Wednesday, a trial judge in British Columbia upheld Canada’s criminal ban on polygamy. But the judgment will be appealed, so it’s not the end of the story. Polygamy is a reminder of how poorly our laws in general suit the ways Canadians live their lives.
To be sure, the religious practice of polygamy has distinctive features. Bountiful, B.C., the fundamentalist religious community at the case’s heart, may drive away young men who won’t find brides. It may limit the life choices of people raised there, especially women. Our higher courts will judge whether the evidence of such harms justifies using the criminal law to limit religious freedom.
But our public discourse over polygamy ignores how polygamy raises some of the same problems shared by other, widely acceptable family forms.
For example, men in polygamous unions may have more children than they can support and may induce economic dependence in more women than they can support. The result is women and children with insufficient resources.
While polygamy may be likelier than other arrangements to lead to more dependants than a breadwinner can support, the problem of unmanageable support duties is widespread. It often arises when someone still supporting children and a spouse from a former relationship assumes new family obligations.
It’s been suggested that same-sex marriage opened the door for legalizing polygamy. But from the perspective of the economic challenges polygamy raises, the key reform was the introduction of accessible divorce, in 1968.
This is because divorce makes it socially acceptable for men to remarry and have more children while the first wife is still living. Divorce also makes it more likely that a man may become the breadwinner for one woman, while still supporting another made dependant by a previous union.
(The persistence of gendered divisions of household labour justifies my references to men and women’s traditional roles. So does the labour force’s continued underpayment for women’s work.)
The key difference between polygamy and the successive families enabled by divorce is timing. Polygamy leads to multiple wives and children simultaneously. Divorce leads to multiple wives and children sequentially. The economic problem in both cases is multiple dependencies and the need for support at the same time.
The increased social acceptability of unmarried cohabitation has made successive families even easier, as repartnering no longer requires the formalities of divorce and remarriage.
Today’s family forms pose pressing issues for law and policy. Should a step-parent who is active in the life of their partner’s child have legal rights and duties? If so, which ones? Should the answer depend on involvement of the child’s other legal parent?
When a person has had multiple partners, who should inherit a pension and government survivor’s benefits? Should a marriage or repartnering late in life defeat the claim of a former spouse who sacrificed job prospects to raise children and maintain the home?
Most Canadians probably don’t see themselves in the images coming out of Bountiful, nor in television’s Big Love, the series about a polygamous family. But many Canadian adults have multiple living partners, past and present. And many Canadian children have more than two parental figures active in their lives.
Our law and policy haven’t caught up to their needs. We need to debate how they might do so.
Robert Leckey teaches family law at McGill University.
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