Polygamous Marriage, Monogamous Divorce

By Higdon, Michael J. | Duke Law Journal, October 2017 | Go to article overview

Polygamous Marriage, Monogamous Divorce


Higdon, Michael J., Duke Law Journal


ABSTRACT

Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists--that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions--dubbed "sequential polygamy"--would compromise the state's interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state's ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty--the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens.

Table of Contents

Introduction
  I. Polygamy: Practice and Prevalence Within the United States
 II. The Fundamental Right to Marry: A Brief Overview
III. The Protective Function of Divorce
     A. Protections for Former Spouses
        1. The Absence of Common Law Divorce
        2. Review of Settlement Agreements
     B. Protections for Future Spouses
        1. Subsequent Marriage Presumption
        2. Marriage by Estoppel
        3. Putative Marriage
 IV. The Ex Ante Costs of Legalizing Polygamy
     A. Legalized Polygamy Undermines the States' Compellin
           Interest in Promoting Divorce Among Separating
           Spouses
        1. Harms to Initial Spouses
        2. Harms to Subsequent Spouses
     B. A Complete Ban is Necessary To Safeguard the States'
           Interest
        1. Gradual Polygamy with Consent
        2. Instant and Complete Polygamy
Conclusion

Law often amounts to a substitute for trust in situations too complex or dispersed for trust to arise.

--Ward Farnsworth (1)

INTRODUCTION

Within the United States, marriage is and always has been limited to two people. (2) Somewhat ironic, then, is the understanding that every marriage is, in actuality, comprised of three parties--the third being the state. (3) That the state would play such an involved role should come as little surprise, however, given the state's "interest in preserving the integrity of marriages and in safeguarding family relationships." (4) That interest is particularly acute when it comes to divorce. As one court aptly explained, "(s]ince marriage is of vital interest to society and the state ... in every divorce suit the state is a third party whose interests take precedence over the private interests of the spouses. …

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