Polygamous foreign marriages under U.S. law

|The Volokh Conspiracy |


Commenters on a recent thread raised some excellent questions:

[LawyerHouston:] If a man from a country which allows him multiple wives moves with his wives to the United States, what is his status vis-a-vis his wives in the United States? Will the first of his wives be considered his wife? Are the other wives SOL with respect to any claims that they may have on his assets arising from their fully legal and recognized marriages?

[santamonica812:] Or, to add another wrinkle, let's say that Wife One is 12 years old. Now that the entire family is in the US. Will Wife One's marriage be legally nullified? If so, will Wife Two now be considered to be the spouse? Or, have wives Two through Five already been excluded under the 'guy was already married when he married you, so your marriage is null and void' theory?

[billposer:] The questions raised are not merely civil. There is also the question of whether the foreign marriage provides a defense against a charge of statutory (or possibly forcible) rape.

I have answers! Or at least I have precedents, which may or may not be followed in other jurisdictions. Here is a general summary, which suggest that the law may recognize foreign polygamous marriages for certain purposes but not for other purposes.

1. Inheritance: In In re Bir's Estate, 83 Cal. App. 2d 256 (1948), the California Court of Appeal held that California would recognize a foreign polygamous marriage for the purposes of intestate succession. Though California public policy might lead to a different result "if decedent had attempted to cohabit with his two wives in California," "[w]here only the question of descent of property is involved, 'public policy' is not affected."

Both wives were thus allowed to share equally in the decedent's property. Earlier authorities took a similar view as to other aspects of financial settlement. Thus, the Restatement (First) of Conflict of Laws (1934), offered this illustration: "A, domiciled in state X, validly marries B and C in X. By the law of Y, a polygamous marriage is void. A brings B and C to state Y; Y may refuse to permit him to cohabit with them. A and B die; Y may grant a widow's allowance to C." The children of the second and later wives could also be treated as legitimate, back when more legal rules turned on legitimacy. Back to the Restatement:

A validly marries three wives, first B, then C, and D, in state X [here "state" would likely mean a foreign country -EV]. By the law of state Y, a polygamous marriage is invalid. A has an only son, M, by his wife C; M is legitimate by the law of their domicil. A dies, leaving land in Y. M may inherit the land unless the law of Y imposes some requirement in addition to legitimacy for inheritance.

There were similar decisions in the late 1800s and early 1900s in cases involving American Indians who had entered into polygamous marriages recognized under tribal law.

2. Statutory Rape: On the other hand, in People v. Ezeonu, 588 N.Y.S.2d 116 (1992), the court refused to treat a second polygamous marriage as a marriage for purposes of statutory rape law. Defendant was prosecuted for having sex with a 13-year-old girl; his defense was that the girl was his second wife, and the parties stipulated that the polygamous marriage was lawful under Nigerian law, where the marriage took place. Under New York law (as under the law of many other states), statutory rape laws do not apply when the defendant is married to the girl; and though New York doesn't let such young girls marry in New York, many states (presumably including New York) do recognize marriages that were lawfully entered into in jurisdictions where the age boundaries are lower. (Some states exclude marriages where the couple left the state precisely in order to take advantage of another state's more liberal marriage laws, but that doesn't apply here.)

But the defendant lost: Because "a polygamous marriage legally consummated in a foreign country will be held invalid in New York," the girl was not treated as his wife, and thus he had no defense to the statutory rape charge.

3. Immigration: Fuad Farfan Ali Al Sharabi marries Badria Haza Ahmed Hassan in 1987 in Yemen, where they are both living. He marries a second wife, Fathiya Abdo Alhaj Maamoon in 2000 in Yemen, apparently consistently with Yemeni law. In 2005, Al Sharabi comes to the United States, and two months later legally divorces Hassan (wife one) in Yemen. In 2009, Al Sharabi gets political asylum, and then asks that Maamoon (wife two, but now the only wife) be granted similar status, "under 8 U.S.C. § 1158(b)(3), which provides that the spouse or child of an alien who is granted asylum may also be granted similar status."

No dice, says the court in Al Sharabi v. Heinauer (N.D. Cal. Sept. 7, 2011), upholding the immigration authorities' reliance on Matter of H, 9 I. & N. Dec. 640 (BIA 1962), and Matter of Mujahid, 15 I. & N. Dec. 546 (BIA 1976). Mujahid, for instance, held that "even if the marriage is valid where celebrated, it is void as against public policy in the United States because it is a polygamous marriage and, therefore, cannot be recognized as valid marriage for immigration purposes." "USCIS's denial" of Maamoon's claim asylum claim, the court says, was thus "not arbitrary, capricious, an abuse of discretion, or in discord with the law. USCIS has an established practice of not recognizing polygamous marriages for the purpose of Form I-730 petitions."

4. How this will all play out in other jurisdictions, and as to other matters, is hard to tell for certain. But I do think the precedents suggest that,

  1. when it comes to what people may do in the U.S. (have sex, refuse to testify against each other, etc.) and to which people may stay in the U.S., U.S. jurisdictions are likely not to recognize marriages two and later in a polygamous union, but
  2. when it comes to distribution of property in a context where the parties to a polygamous marriage likely expected to be treated as spouses, there is a stronger likelihood of treating marriages two and later as equivalent to marriage one.

Perhaps over time principle 2 will cut away at principle 1, or vice versa—but in any event, this is the way things seem to stand today.