Bigamy is prohibited by Article 196 of the Maltese Criminal Code. Bigamy and polygamy are two different types of marriage practices, both involving marriages to multiple spouses. In a bigamous marriage, two or more spouses are typically unaware of one another. In a polygamous marriage, two or more spouses are aware of each other's union with the other spouse. Polygamy is also typically practised for cultural or religious reasons, whereas bigamy is not.
Cultural differences and differing laws from one country to the next can make polygamy a confusing issue. You may be unsure if your second marriage is allowed, especially if you were married in an Islamic country but now live in a country where polygamy is not permitted.
Intentionally committing bigamy is a crime, as it almost always involves deception. In bigamous marriage unions, the spouse with multiple spouses has hidden the fact that they are married to multiple people.
The term "polygamy" can refer to the simultaneous union of either a husband or wife with multiple spouses. Polygamy is a model that has been in operation in various countries for several centuries. Other countries consider polygamy illegal, but practising it does not attract punishment like a jail term. As a general term, polygamy therefore includes the practices of bigamy, polyandry and polygyny.
Anthropologically, polygamy is defined as marriage between one person and two or more spouses simultaneously. It exists in two main forms: polygyny, where one man is married to several women, and polyandry, where one woman is married to several men.
Significantly, the Criminal Code does not provide an express definition of polygamy. The principal difference between bigamy and polygamy, however, is the fact that bigamy requires a "form of marriage", whereas polygamy does not. Polygamy consists of the maintenance of conjugal relations by more than two people. When the result of such relations is to form a single matrimonial or family entity with the spouses, this is regarded as polygamous marriage.
By focusing on the formation of a "single matrimonial or family entity" without requiring the actual legal validity of the form of the multiple marriages (as is usually the case for bigamy), the criminal code should include a definition to incorporate those polygamous unions where subsequent marriage ceremonies may be solely religious or customary in nature.
It is this focus on subsequent de facto religious or cultural marriages that should be central to the legal prohibition of polygamy. Prohibiting bigamy alone, with its requirement of multiple de jure marriages, would fail to address the lived reality of these de facto marital unions.
European states, including Malta, have not given up the right to judge family forms according to a standard. There is one family form, based on polygamy, that these states refuse to recognise. Indeed, Identity Malta, in defining family members for purposes of law, does not authorise spouses engaged in polygamous marriages to be admitted to Malta on the basis of a strict policy if the sponsor is already joined by a spouse in Malta.
It is in this context that I have been picking up reliable rumours that in various communities around our islands, in particular within closed Muslim communities, there are Muslim men who have up to four wives at one time after obtaining consent from their existing spouses. Furthermore, some husbands hold secret weddings elsewhere, in flagrant breach of our Marriage Act provisions, causing problems when they return home with their additional wives. In contrast, there is no evidence of polyandrous polygamy, wherein a wife is simultaneously married to multiple husbands. The term "polygyny", therefore, more accurately reflects the majority of polygamous unions and the international human rights norms with which they conflict.
In analysing Malta's commitments under international human rights law, it is important to consider Malta's obligations to respect freedom of religion as well as guarantee equality between men and women. While Malta is not entitled under international law to restrict religious belief, it is entitled and, in fact, obliged in some circumstances to restrict religious practices that undermine the rights and freedoms of others.
Courts have decided that the right to manifest one's religion can be limited for legitimate purposes, including the protection of health, the promotion of secularism, and the protection of gender equality. Amidst this international and domestic legal commitment to gender equality, the practice of polygyny violates women's right to equality within marriage and the family.
Under international human rights law, there is a growing consensus that polygyny violates women's right to be free from all forms of discrimination. Where polygyny is permitted through religious or customary legal norms, it often relies on obedience, modesty and chastity codes that preclude women from operating as full citizens and enjoying their civil and political rights. The physical, mental, sexual, reproductive, economic and citizenship harms associated with the practice violate many of the fundamental human rights recognised in international law. State practice indicates that a complete legal prohibition of polygyny is the norm in most domestic systems. These restrictions reflect not only the socio-economic problems associated with polygyny but also a growing recognition of women's right to equality.
The state's interest in marriage is stability. Generally speaking, polygamy does not promote stability. Inherent in the whole polygamous movement is a deep and abiding misogyny and denigration of women. So polygamy is objectionable on lots of grounds.
Is it time, therefore, to revise bigamy as an offence to cover other related situations?
Dr Mark Said is a lawyer