when is a polygamous marriage not a polygamous marriage

Sept. 19831 NOTES OF CASES 653

private law duty in Anns a plaintiff must first show excess ofpower: in Cocks, an individual must first show a valid and favourable exercise of power. This apparent contradiction may be explained as a difference in context or issue, or by pointing out the different nature of the torts involved. In reality, the difference is one of approach rather than effect. The public law/private law divide in both cases places a hurdle in the path of an individual seeking private law redress from public authorities, and thus helps consolidate and protect administrative powers from obligations owed to, and enforceable by, individuals.

Conclusion In O'Reilly and Cocks the House of Lords has taken an important step towards consolidating litigation against public authorities in a specialised High Court jurisdiction based on judicial review. The consensus amongst their Lordships highlights the importance attached by the higher judiciary to this development. I have argued that a prime function of this consolidation is to maximise judicial control over public law litigation and thereby enable the judiciary to regulate its and the law's role within government. If Lord Diplock's lead is followed, judicial decision-making will become more overtly pragmatic, with the need to reason from legal principle and precedent declining. This does not imply that decision-making is to become more open, clear, rational or accessible. On the contrary, it will mean that academics and practitioners will need a more rigorous appreciation and under- standing of hidden factors : the underlying concerns, inarticulated premises of, and structural pressures operating on judges and the judiciary.

MAURICE SUNKIN*

WHEN IS A POLYGAMOUS MARRIAGE NOT A POLYGAMOUS MARRIAGE?

SECTION 11 (d) of the Matrimonial Causes Act 1973, formerly section 4 of the Matrimonial Proceedings (Polygamous Marriages) Act 1972 has, ever since its enactment, been an obstacle to racial harmony in this country. It provides :

" A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say , . . (d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

For the purposes of paragraph ( d ) of this subsection a marriage may be polygamous although at its inception neither party has any spouse additional to the other."

* Senior Lecturer in Law, Polytechnic of the South Bank. I wish to thank Carol Harlow, Nigel Duncan and colleagues at the Polytechnic of the South Bank who kindly read and commented on an earlier draft of this note.

654 THE MODERN LAW REVIEW [Vol. 46

The example u!jually given' to illustr,ate the problem to which application of the subsection may give rise is of a single Muslim man of Pakistani2 origin, domiciled in England, who returns to Pakistan to marry a woman from his local comnnunity in a Muslim ceremony, Under Pakistani Haw a Muslim man may take more than one wife and accordingly such a marriage is potentially polygamous. Until recently it was assumed3 that such a marriage would be void under section 11 (d) although it is at all times actually monol, 'amous.

There were two bases for this assumption. First, the wording of section 1 1 (d) indlicates that its effect is not limited to marriages which are actually polygam~us .~ Secondly, the subsection was intended6 merely to enact the common law. The prevailing although by no means universal view is that at common law a marriage was considered polygamous if its nature and incidents as determined by the lex loci celebrarionis were polygamous.e

The practical repercussions of the marriage in the example being void are great. It is very common7 among the Muslim community in this country for men to return home to marry the bride chosen by their relatives. If the marriage is invalid the " wife " may have no right8 to enter this country. Invalidity will also, inter aha, affect whether she may be nat~ral ised,~ her succession rigli~ts'~ and possibly the legitimacy of their children." It is therefore surprising that it took over 10 years before this statutory provision came before the Court of Appeal in Hussain v. Hussain.12

Hartley (1971) 34 M.L.R. 305, 306-307; Jaines (1979) 42 M.L.R. 533, 531; Poulter

The principles alpply equally to those originating from any country which allows

Dicey and Morris, The Conflict of Laws, (1980) p. 320; Morris, The Conflicr of Laws (2nd ed., 1982), p. 128; Cheshire and North, Privare Inrernarional Law (10th ed., 1979), p. 349 and articles in note 1, sirpra.

In fact s. 1 1 (d) seems to have no effect in relation to actually polygamous marriages which are already invalidated by s. 11 (b).

H.L.Deb., Vol. 331.,cols. 1190-1 193 (June 151,1972). Dicey and Morris, 0.0. cir. p. 309; Morris, op. cir. p. 125; Cheshire and North,

op. cir. pp. 299-302; Law Commission No. 42 (1971). para. 10, Re Eerhell (1888) 38 Ch.D. 220; Qrrreshiv. Qureshi 119721 Fam. 173, Brihkleyv. All.-Gen. (1890) 15P.D. 76,80; Lee v. Lair [1967] P. 114, 20; Cheni v. Cheni (1965) P. 85, 90; Contra Cheshire and North, op. cir. pp. 299-302; Poulter (1976) 25 I.C.L.Q. 475; Stone [I9831 FarnilyLaw 76. Kenward v. Kenivard[1951]P. 124, 145; Rirssv. Rims (19641 P. 315.

Where the marriage is actually monogamous the " wife " will probably be admitted under para. 45 of the Immigration Rules 1980.

Less stringent preconditions govern the discretior. to grant naturalisation to a spouse of a British citizen. (British Nationality Act 1981, s. 6 (I) and (2).) A woman married to a citizen of the United Kingdom and Colonies immediately before commencement of the 1981 Act (on January 1, 1983) has the right to register as a citizen until January 1, 1988 (British Nationality Act, s. 8).

lo She will not blt entitled to the surviving spouse's share on intestacy. However, hardship caused by this exclusion may be mitigated to a large extent by the court under the Inheritance (Provision for Family and Dependants) Act 1975, ss. 1 (1) (a), (2) (a) and 2 (4).

1' Reasonable beliief under Legitimacy Act 1'376, s. 1 will be affected by whether the parents have been alerted to the doubt about the validity of the marriage (for example, by the Home Office) and possibly whether it is based on a mistake of law.

(1976) 25 I.C.L.Q. 475,506; Cretney (1972) I16 SJ. 654.

polygamy.

' Pear1(1980)22 J.I.L.I. 8l;Poulter(1976)25I.C.L.Q.475,504.

l 2 (19821 3 All E.R. 370.


This does not mean that the subsection has been a “ dead letter ” to date. The Home Office relies on the subsection when assessing the validity of marriages for nationality p ~ r p 0 s e s . l ~ Since its applicability depends on the domicile of the parties at the date of the marriage few cases are clear-cut and the Home Office adopts the practice of informing parties that there is a doubt about the validity of their marriage and suggests they should go through another ceremony of marriage in an English Register Office.14 This administratively sensible suggestion disregards the feelings and sensitivities of the parties.

Thus, the outcome of the Hussain case was of great importance for the Muslim community. The material facts were as in the example above. After the marriage the husband brought his wife back to live in this country. The only question before the Court was whether the marriage was polygamous (and thus void) under section 11 (6).

Ormrod L.J. giving the judgment of the Court, held that the law of the domicile of the parties determined whether the marriage was polygamous for the purpose of section 11 (4. Since neither party had capacity to take more than one spouse by the law of his/her domicile, the marriage in question was not polygamous within the meaning of section 11 (d) and was therefore valid. This conclusion necessitated attributing a different meaning to “ polygamous ” in section 11 (6) than at common law. Whether the marriage was “ polygamous ” was, in Ormrod L.J.’s view, a question of capacity and thus should be governed by the law of domicile rather than the lex loci celebrationis.

Ormrod L.J.’s reasoning may be summarised as follows: 1. The characterisation of the marriage as monogamous or poly-

gamous under section 1 I (d) is for a different purpose than at common law.15 At common law this characterisation was for jurisdictional purposes since under the rule in Hyde v. Hyde16 the Court could not entertain any suit for matrimonial relief in relation to a polygamous marriage. Since the abolition of that rule17 the issue of polygamy is now relevant only to testing the validity of the marriage and therefore should be governed by the lex domicili.

2. The wording of section 11 (d) is different to that of section 47, Matrimonial Causes Act,lB which refers to a marriage “ entered into under a law which permits polygamy.” Section 47 clearly refers to the common law test of the lex loci celebrationis. The inference from the different wording is that the word “ polygamous ” in section 11 (d) has a different meaning.

3. The purpose of section 11 (d) was to prevent English domiciliaries becoming parties to actually polygamous unions.le Thus the subsection should be interpreted only to invalidate marriages, where at the inception of the marriage.one party has capacity to take additional spouses.

l3 See Law Commission Working Paper No. 83, paras. 4.15 and 4.16. l4 Ibid. l6 At p. 371f-h. l6 (1866) L.R. 1 P. & D. 130. l7 By Matrimonial Proceedings (Polygamous Marriages) Act 1972, s. 1 (now M.C.A.,

At p. 372e-g. s. 47).

At p. 371j-372b.

TIlE MODERN LAW REVIEW [Vol. 46

4. The repercussions of interpreting section I I ( d ) in line with the common law are “ widespread and profound ” and should be avoided by a narrower interpretation of the subsection.20

The result of the decision is to be applauded. It has removed the shadow of doubt which has hung over many immigrant marriages and has ended the anomalous situation whereby the validity of a marriage depended upon whether the man had changed his domicile before or after the marriage.21 It is, however, respectfully submitted that Ormrod L.J.’s reasoning is defective in several respects.

Ormrod L.J. forgets that the fex foci test, which he dismisses as purely jurisdictional, probably also determined the character of the marriage in cases involving essential validity.“* He seems to suggest that the fex foci celebrationis is no longer relevant at all in determining whether the marriage is polygamous for the purposes of section 1 I (d) . Yet, the effect of applying only the personal law of the parties would be far- reaching. For example, if an unmarried Muslim man domiciled in Pakistan married an English domiciled woman in a civil ceremony in, say, France,23 the marriage would be a polygamous union within section 11 (d) since the husband has the capacity by the law of his domicile to take a second wife. The marriage would therefore be void due to the wife’s incapacity undeir section 11 (d) although it is in form and in actuality monogamous. In short, an English domiciled woman would not be able validly to marr!, a man whose personal law allowed polygamy other than in England and Wales. This result cannot have been intended and it is submitted that following Hussain a marriage will be polygamous within section 11 ( d ) when and only when both:

(a) its nature and incidents as determined by the lex loci celebrationis are such a!; would be regarded as polygamous by English law; and

(b) one party has, at the time of the marriage, capacity to take an additional spouse(s) during the subsistence of that marriage.

The survival of the fex loci celebrationis seriously undermines Ormrod L.J.’s first two reasons for concluding that the meaning of “ polygamous marriage ” in section 1 1 (d) is different than at common law.

Perusal of the relevant proceedingsz4 in Hansard reveals that Ormrod L.J. (who could not, of course, corisult Hansard) has misconstrued Parliament’s intention. Ironically, in the Matrimonial Proceedings (Polygamous Marriages) Bill both clause 1 (now M.C.A., s. 47) and clause 3 (now hl.C.A., s. 1 I (d)) referred to a marriage “ entered into under a law which permits polygamy.” Clause 3 was amended in

656

2o At p. 372h. 21 A potentially polygamous marriage contracted by a man while domiciled say in

Pakistan is valid and has been held to be converted into a monogamous marriage when he becomes domiciled in England. Aliv. Ali [1968] P. 564.

22 In Re Bethell (1888) 38 Ch.D. 220 and Brinkley v. Air.-Gen. (1890) 15 P.D. 76, which both involved essential validity, the lex foci test was used to characterise the marriage.

z3 s. 11 (d ) only invalidates marriages entered into outside England and Wales. Pre- sumably, this is because all marriages entered into in this country are monogamous whatever the personal law of the parties-see, e.g. Qrrreshiv. Qureshi (19721 Fam. 173.

24 H.L.Deb., Vol. 331, cols. 16-21 (June 5, 1972) and Vol. 331, cols. 1186-1202 (June 15,1972) and Report of Standing Committee C, cols. 3-14 (May 3,1972).


Committee to read “ a polygamous marriage ” in case it should be thought that the section invalidated Christian marriages contracted in a country whose legal system recognised polygamy.25 The reason for the difference in wording between the two provisions was not that ascribed by Ormrod L.J. Further, the enactment of Matrimonial Proceedings (Polygamous Marriages) Act, s. 4 (now s. 11 (d) ) was in part intendedzo to allay public fear that the reversal of the rule in Hyde v. H y ~ l e ~ ~ by section 1 of that Act would encourage and foster polygamy. The Lord Chancellor explained that the purpose of the rider to section 1 I (d) was “ to make it clear that the phrase ‘ polygamous marriage ’ is not confined to cases of actual polygamy but includes a marriage which, from the outset, is potentially polygamous in character.”28 Under Ormrod L.J.’s interpretation the section would never in practice invalidate the “ potentially polygamous ” marriage of an English domiciled man. It is difficult to believe that Parliament intended to legislate only in respect of English domiciled women.

Finally, although Ormrod L.J.’s concern about the repercussions of his holding the marriage in this case to be void is fully justified, it is questionable whether a court should interpret a statutory provision on the basis of policy where its language is not ambiguous. Ormrod L.J.’s assertion that the language of the draftsman “ is consistent ” with his construction may be correct, but whether his interpretation of the word polygamous accords with the literal meaning of the subsection is arguable.

It is inappropriate to discuss here the judiciary’s role in law reform. However, the case does illustrate one of the drawbacks of piecemeal reform through judicial decisions. Because the reform is linked to the fact situation before the Court the decision creates new anomalies and unacceptable distinctions. As Ormrod L.J. recognises, the effect of his decision in this case is sexist. An English domiciled man may validly marry a Pakistani domiciled woman in a Muslim ceremony in Pakistan, but an English domiciled woman may not validly marry a Pakistani domiciled man in such a ceremony since he has capacity to take a plurality of wives. Thus, the daughters of immigrant families cannot return to marry local men whose domiciliary law permits polygamy.

Further, the decision creates a distinction between marriages in polygamous form contracted by male English domiciliaries before and after 1971. Theformer are void at common lawz9; the latter are valid under statute.30 Similarly, since Scotland has no equivalent of section 1 1 ( d ) such marriages would be void there as at common law.

~~

25 See Report of Standing Committee C, cols. 5-7. 26 See,e.g. H.L.Deb.,Vol. 331,coI. 18(June5,1972). 27 (1866) L.R. 1 P. & D. 130. 28 H.L.Deb.,Vol.331,col.1192(Junel5,1972). 2 9 Although case law on this point is sufficiently inconclusive to allow a court to hold

that such marriages were also valid at common law, i .e. that Parliament was enacting the common law, but not the common law i t thought i t was enacting. See Stone (1983) Family Law 76. 30 M.C.A. 1973, s. 1 I, provides an exhaustive list of thegrounds upon which a marriage

is void,


Is the Hussuin marriage to be considered monogamous for all purposes or sirnply in relation to the application of section 1 1 (d )? Although there are now few practical differences31 between valid monogamous and valid potentially polygamous marriages the distinction is still important in assessing the validity and effect of subsequent polygamous marriages.

The first issue is whether the husband can by change of domicile acquire capacity to contract subsequent polygamous marriages. If the first marriage is considered potentially polygamous, for purposes other than section 1 1 (d), then it is difficult to see how he can be denied such capacity. If however the first marriage is treated as monogamous in character for all purposes it can be argued, despite indirect authority to the contrary,32 that no subsequent polygamous marriage can be valid notwithstanding a change of domicile.

A second issue concerns the wife’s position vis-6-vis her husband and his other wives, assuming the subsequent marriages to be valid. If the first marriage is considered potentiaNly polygamous for purposes other than section 11 ( d ) then the first wife will be treated as a “ polygamous wife ” and, for example, her husband’s sexual intercourse with his other wives will not be adulterous.33 Kt is otherwise if the first marriage is treated as monogamous for all purposes.

The judgment in Hussain gives little help on these points. Ormrod L.J. does not advert to the possibility of Mr. Hussain acquiring capacity to contract futurle polygamous marriages by changing his domicile and apparently accepts counsel’s submission that “ this marriage can never become po lygamou~ .”~~ This seems to indicate that the problem was not considered by the Court rather than to indicate that the marriage is to be treated as monogamous for all purposes and is an absolute bar to subsequent polygamous marriages.

Thus, although the decision in Hussain v. Hussain is to be welcomed, Ormrod L.J.’s interpretation of the word “ polygamous ” is strained and until the House of Lords approves the decision, uncertainty about the effect of section 1 1 (d ) will remain. Further, the anomalous distinctions created by the decision a.re most unfortunate.

The Law Commissions’ Working Paper A joint Working Paper of the Law entitled “Capacity to contract a polygamous marriage and the concept of the potentially polygamous marriage” had just been concluded when Hussain v. Hussain was decided. The Working Paper was amended to take account

31 Law Commission Working Paper No . 83, paras. 4.40-4.44; Morris, op. c i f . pp. 128-

32 Art.-Gen. of Ceylon v. Reid [I9651 A.C. 720; Dramnieh v. Draiiimeh (1970) 18 133; Cheshireand North, op. cir. pp. 307-312.

CevIonLaw Weekly 55. 33 Also, on her husband’s intestacy a “ monogamous ” wife may well take the surviving

spouse’s portion to the exclusion of subsequent wives. A “ polygamous ” wife will have to share with them.

34 See at pp. 371d and 372c. 36 Law Commission Working Paper No. 133 and Scottish Law Commission Consultative

Menlorandurn No. 56.


of the decision and the Commissions' main recommendations may be summarised as follows:

I . The law is still in need of reform notwithstanding the decision in Hussain v. Hussain.

2. Section 11 of the M.C.A. 1973 should be amended so as only to invalidate actually polygamous marriages to which an English domiciliary is a party.36

3. No marriage should be regarded as polygamous unless it is actually polygamous.

4. The amendments should be retrospective. 37 The effect of these proposals would seem to be that no marriage

would be void merely because it was potentially polygamous. Those domiciled in England and Wales would have capacity to contract potentially polygamous marriages. What is the position where a party domiciled abroad lacks capacity to enter into a potentially polygamous marriage by the law of his/her domicile? Under the third recommendation the marriage would apparently be treated as monogamous and so would be valid.

These proposals achieve the benefits of the Hussain decision without its anomalies. However, they do not solve all the problems. In particular, the effect of subsequent valid polygamous marriages on the first marriage would still be uncertain (see above, p. 658) and the question of which law governs capacity to enter into a polygamous marriage would remain unresolved. Both of these issues are discussed in the Working Paper.

The Law Commission assumes that subsequent polygamous marriages are valid whatever the nature of the first marriage. It is a pity that the Commission did not take the opportunity to examine the correctness and merits of this proposition. Instead, the discussion concentrates on the position of the first wife vis-h-vis the husband and future wives. The conclusion is that " it would be wrong to change the law so that all first marriages, irrespective of the nature of the ceremony and the domicile of the parties were regarded in England as conferring on the wife the rights of a wife under a monogamous marriage."38

Therefore, in effect some wives whose marriages were in polygamous form, although actually monogamous, are still to be treated as " polygamous wives " vis-h-vis their husbands and his future wives, but the " potentially polygamous " characteristic of their marriage only comes into play after a subsequent marriage has been contracted.@

36 If the dual domicile test governs capacity to contract polygamous marriages, then s. 11 (b) IS it stands would have the required effect. I f however Radwan v. Radwan (No. 2) 119731 Fam. 35 is correct then s. I 1 (b) would invalidate all polygamous marriages of those intending to live in this country whatever their domicile, but not those of English domiciliaries who d o not intend to set up their home here and thus would require amend- ment to implement the Law Commission's recommendations.

37 The Commission changed its mind about retrospective legislation as a result of the decision in Hussain v. Hussain. The concern was that unless the amendments were retrospective the anomalous distinctions created by that decision (supra, p. 44) would remain.

38 Law Commission Working Paper No. 83, para. 5.25. 39 The marriage is by then actually polygamous and so is not covered by the Law

Commission's third recommendation.


If the concept of the potentially polygamous marriage is to remain albeit for this one purpose, it is essential to know by what law the marriage is to be characterised. Hussuin v. Hussuin has refuelled the controversy on this point. However the Law Commission is uncertain whether legislation is desirable and, if it is, tentatively proposes the limited rule tha’t “ a marriage contracted by a person having an English domicile should be regarded as having a legally monogamous character, until that person should acquire a domicile, in a country whose law permits polygamy.” 40

With respect, such a rule is objectionable in principle and would cause difficulties in practice. The rule would allow marriages which were monogamous at their inception (because one party was domiciled in England) to be converted into polygamous marriages by change of domicile. This contravenes the policy of promoting monogamy and could give rise to considerable uncertainty about the nature of a marriage at a particular time. One would first have to ascertain whether either party was domiciled in Englaind and Wales at the time of the marriage to see if the rule applied and then to inquire whether the domicile had been lost. Presumably, the nature of the marriage would also change with every subsequent change of domicile.41 The ramifications are absurd. Suppose HI and WI, both Pakistani Muslims domiciled in England, marry in polygamous form in Pakistan. H reverts to his Pakistani domicile of origin and marries W2. So long as W1 remains domiciled in England her marriage will be monogamous in character and so H will be committing adultery with W2. But as soon as she reverts to her domicile of origin H’s intercourse with W2 will cease to be adulterous.

It is unnecessarily complicated for the nature of the marriage to change with What is required is a simple and straight- forward set of rules for ascertaining the character of each marriage and not just a limited rule only applying where one party is domiciled in England and Wales at the time of the marriage. The rules should both accord with policy objectives and cause minimum injustice as between the parties. I t is suggested that the test used by Ormrod L.J. in Hussain v . Hussain for determining whether the marriage was polygamous for the purpose of section 1 I (d ) M.C.A. 1973 might be adopted in this context. Thus, the following might be added to the Law Commission’s four recommendations.

For the purpose of ascertaining the rights of a first wife vis-d-vis her husband and his subsequent wive!; the first marriage shall be characterised according to the following rules:

(1) All marriages are monogamous unless both:

40 Law Commission Working Paper No. 83, para. 8.1. 41 When a man becomes domiciled in England his potentially polygamous marriage is

converted into a[ monogamous one. Ali v. .A/i [I9681 p. 564. There is no authority as to theeffect ofsuch a change of domicile by a wife.

42 In Ali v. M i (19681 p. 564. CummingBruce J. used “ conversion ” as a “ device ” to circumvent the rule in Hyde v. Hyde and so allow the court to grant matrimonial relief. Since the abrogation of that rule such a “ device ” is no longer necessary.

Sept. 19831 NOTES OF CASES 66 1

(a) the marriage is contracted in polygamous form in a country

(b) at the time of contracting the marriage one party has

(2) The character of a marriage, as determined at its inception,

The first rule of the suggested test for characterisation begs the question of how capacity to enter into a polygamous marriage is to be determined. The prevailingview, including that of Ormrod L.J. in Hussain v. N ~ s s a i n , ~ ~ is that the dual domicile test applies. The deficiencies of this test and the need to find an alternative test are discussed below. Xn seeking such alternative it should be borne in mind that the test of capacity for the purpose of characterising a marriage at its inception need not necessarily be the same as the test used to assess the validity of subsequent polygamous marriages.

Under the Law Commissions’ recommendations English domiciliaries would still be denied capacity to enter into actually polygamous marriages under an amended section 11, M.C.A. 1973. This principle does not of course resolve the choice of law controversy raised by Radwan v. Radwan (No. 2).44 If that decision is correct and the intended matrimonial home test determines capacity to contract a polygamous marriage, then the prohibitions of section 1 I , M.C.A. 1973, would only apply where the intended matrimonial home is in this country. So, an English domiciliary would only lack capacity to contract a polygamous marriage if he intended to reside in England (or some other country which prohibits polygamy). The Law Commission does not discuss the merits of the intended matrimonial home test or the other alterna- tives 46 to the domicile test on the basis that “ reform of the choice of law rules on capacity to enter a polygamous marriage . . . should not be examined in isolation from the wider issues relating to choice of law in marriage.” 46

The Law Commission announces its intention4’ to resume its suspended work on the choice of law rules relating to marriage and recommends a review of the law of domicile.48 It is to be hoped that it will report on these matters soon.

In considering what test ought to govern the essential validity of actually polygamous marriages, it is suggested that two guiding con- siderations ought to be first, the desire to maintain the institution of monogamy in this country and secondly, the need to protect women living in our community from becoming parties to polygamous marriages. The dual domicile test does not fulfil either of these require- ments. It does not prevent those who to all intents and purposes are

whose law permits polygamy; and

capacity to take a plurality of spouses.

cannot be altered by change of domicile.

43 See Morris, op. cft. pp. 127-128 and Cheshire and North, op. cil. pp. 348-350. 44 [I9731 Fam. 35. 46 e.g. habitual residence. 46 Law Commission Working Paper No. 83, para. 5.30. 47 Ibid. para. 5.31. 4 a Ibid. para. 5.32.


part of our community although not technically domiciled here4D from practising polyg,amy in this country. Nor does it take into account that there are three parties to a polygamous marriage and therefore does nothing to protect the first wife.5o

Until the law of domicile is reformed or a preferable connecting factor found to govern capacity to marry reforms of law in this area will of necessity be imperfect, albeit intrinsically worthwhile as are the recommendations in the Working Paper under discussion. Mean- while those recommendations shouhd be implemented as they are a substantial improvement on the position following Hussain v. Hussain.

RHONA SCHUZ*

MUZZLING THE CONCIENTIOUS CITIZEN

MUCH concern has been expressed in recent months over the scope of the offence of obstructing a police officer in the execution of his duty.' The decision of the Divisional Court in Hills v. Ellis will undoubtedly incur criticism from civil libertarians., not least because of the ambiguity of the principle: it enunciates and the dangers it poses for the " concientious citizen " when applied to other factual situations.

Mr. Hills, the defendant, and a friend were making their way from a football match which had just concluded. They witnessed a fight between two men. Mr. Hills formed the view that one of them was the innocent party. When P.C. Grey arrested the man Mr. Hills considered to be innocent, the defendant intervened on the " innocent man's " behalf. To overcome the crowd noise, he addressed P.C. Grey in a loud voice but P.C. Grey still failed to hear what was said. He then grabbed the constable Iby the elbow to gain his attention in order to inform him he had arrested the wrong man so the constable, if he wished, could revise his decision. The prosecutor, who had witnessed all this, warned Mr. Hills that if he did not desist, he would be arrested for ob~t ruc t ion .~ When the defendant did not do so, lne was arrested and charged.

It is important to note the findings of the justices.4 They were of opinion that, in intervening, Mr. Hills " conducted himself in an excited and agitated fashion," his manner of intervention " failed to take into account the problems of the omcer in making an arrest against the background of many people leaving the football ground

4 D See Poulter (1983) Farnity Law 72, 73. 6o This problem could be largely remedied by making a '' monogamous " marriage an

* Lecturer in Law, London School of Economics. absolute bar to subsequent polygamous marriages.

Largely because recent decisions.appear to be extending the width of the offence; see Rickerrs v. Cox (19821 Crim.L.R. 184; Lidstone (19821 N.L.J. 953; Gibbons (19831 Crim.L.R. 21 ; Lidstone(l9831 0 i m . L . R . 29.

(198312 W.L.R.234. Ofcourse no power exists to arrest for obstructionper se but it seems that the breach

of the peace element would furnish a power of arrest; see R . v. Holvell (19811 3 W.L.R. 501. 119831 2 W.1L.R. 234,236B-E.

when is a polygamous marriage not a polygamous marriage

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