Bringing International Human Rights Law Home: An Evaluation of Canada's Family Law Treatment of Polygamy *

By Kelly, Lisa M. | University of Toronto Faculty of Law Review, Winter 2007 | Go to article overview

Bringing International Human Rights Law Home: An Evaluation of Canada's Family Law Treatment of Polygamy *


Kelly, Lisa M., University of Toronto Faculty of Law Review


I   INTRODUCTION

II  THE CONTEXTUAL REALITY OF POLYGAMOUS FAMILY STRUCTURES

      Polygamous Relationships in the Canadian Context
      Polygyny as a Form of Patriarchy
      Moving Beyond a Harm-Based Analysis of Polygyny in the
      Family Law Context

III INTERNATIONAL HUMAN RIGHTS LAW AND POLYGYNY:
    ASSESSING CANADA'S INTERNATIONAL OBLIGATIONS

IV  WHAT ROLE SHOULD CANADA'S INTERNATIONAL HUMAN RIGHTS
    COMMITMENTS PLAY IN ITS DOMESTIC FAMILY LAW TREATMENT OF
    POLYGAMY?

      International Human Rights Norms as a Legally Coherent
      Approach to the Treatment of Polygamy
      The Role of Rights in Canadian Family Law
      Human Rights and Family Law: A Qualitative Tension?
      Human Rights versus Multiculturalism

        Accepting Dominant Articulations of Religion or Culture
        An Irreconcilable Tension Between Equality Rights and
        Freedom of Religion or Culture

V   A FRAMEWORK FOR THE CANADIAN FAMILY LAW TREATMENT
    OF POLYGAMY

      Non-Recognition at Formation
      Recognition for the Purpose of Relief:
      Responding to Women's Lived Realities

        Child Support
        Spousal Support
        Matrimonial Property Division

V   CONCLUSION

ABSTRACT

Following the re-definition of marriage in Canada to include same-sex couples, there have been renewed questions about the continued legal relevance of other elements in the definition of marriage, including monogamy. As family law moves away from a religious-moral paradigm, it is essential that legislators, policymakers, and courts articulate coherent principles for the treatment of marriage in a pluralist society. This article examines one facet of these issues--Canada's family law treatment of polygamy--and in doing so, argues for the broader application of Canada's international human rights commitments in its domestic family law policy.

Although polygamy remains a criminal offence in Canada, its regulation has been left largely to other areas of the law, particularly immigration and family law. This article examines Canada's family law treatment of polygamy because of the significant role that family law plays in family formation and dissolution. The article begins by discussing the prevalence and nature of multiple-partner unions in Canada, with a specific focus on polygyny (a husband with multiple wives)--the predominant form of multiple-partner unions in Canada. Polygyny is distinguished from other multiple-partner unions, including polyandry and polyamory, because of its gender-discriminatory and patriarchal foundations. These gender inequalities implicate Canada's international human rights obligations to ensure women's right to equality in marriage and family life. After showing why international human rights law can and should inform domestic family law, the article posits a dualistic framework for the Canadian family law treatment of polygyny. This framework would withhold formal marriage recognition at the point of family formation to discourage a gender-discriminatory family practice. However, even where formal recognition is withheld, a rights-based analysis must still account for the rights and interests of those in existing unions. Therefore, the framework also requires that polygynous spouses have access to relief at relationship breakdown, including child support, spousal support and matrimonial property division. The article concludes by analysing polygynous spouses' ability to access such relief within the present legal system and proposes appropriate reforms where access remains limited.

RESUME

A la suite de la redefinition du mariage au Canada pour inclure les couples homosexuels, plusieurs questions ont reapparu sur la pertinence juridique continue d'autres elements dans la definition du mariage, y compris la monogamie. Au fur et a mesure que le droit de la famille s'eloigne d'un paradigme religieux--moral, il est essentiel que les legislateurs, les elaborateurs de politiques et les tribunaux articulent des principes coherents pour le traitement du mariage dans une societe pluraliste. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Bringing International Human Rights Law Home: An Evaluation of Canada's Family Law Treatment of Polygamy *
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.