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
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.
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. …