What do we mean by marriage?
Peter Clemerson (August 1, 2017)
A series of reports in the New Zealand Herald in late 2016 and early 2017 covered the domestic violence offending of Pakistan-born Mr. Yasir Mohib and the sequence of Mr Mohib's court appearances. As a Humanist marriage celebrant, my interest in the case, and perhaps that of some other Humanists, lies in Mr Mohib's marital arrangements. He has a family consisting of five children born in New Zealand to their two New Zealand-born mothers, who are referred to in the newspaper articles as his “wives”. I wondered how such a situation could have arisen as the procedure for obtaining a marriage licence for the second marriage would have required Mr Mohib or his “wife-to-be” to have made a false statutory declaration about Mr Mohib's marital status when applying for the license. Had a license been issued in such circumstances and the marriage taken place, Mr Mohib would have committed bigamy, a criminal offence. In an interview conducted by TV 3 (1) it was made clear that while his first wife was married to Mr Mohib according to Australian and therefore also NZ law, the second “wife” was not. Only a religious ceremony has taken place (2). She calls Mr Mohib her husband but admits that she is not married to him according to NZ law.
I believe the case raises some troubling issues for many Humanists, although perhaps not all. Marriage is regarded by many of us, perhaps most, as a binding of just two people together with legal and emotional ties. While the reasons for including only two parties within the marriage are many and varied, one is the granting by both parties of a right to the other to exclusive emotional attachment and consideration, a concession to the prevalence of jealousy in human nature (3). While our legal system appears to protect and value the ceremony of marriage itself, the institution and the status that it confers, by criminalising bigamy, a gaping loophole exists. Simplifying slightly, the NZ Crimes Act 1961 defines a marriage as bigamous only if one of the parties is already married and the ceremo-ny is conducted apparently in accordance with the requirements of the Marriage Act 1955.
One of these requirements is the prior issue of a licence. If no licence has been issued, the ceremony has not been conducted in accordance with the requirements of the Marriage Act 1955 and therefore no act of bigamy has taken place. The situation is different in Australia where the ceremony of marriage, its meaning and resulting status are better protected by more careful wording. Here is the relevant passage from the Australian Marriage Act 1961, section 101.
“Solemnisation of marriage by unauthorised person
A person shall not solemnise a marriage, or purport to solemnise a marriage, at a place in Australia or under Part V unless the person is authorised by or under this Act to solemnise marriages at that place or under that Part, as the case may be.
Penalty: $500 or imprisonment for 6 months.”
The important phrase is “…, or purport to solemnise a marriage, …”. No-one can call a ritual a marriage ceremony or represent it as a marriage ceremony unless it conforms in all respects to Australian law. We have no such phrasing in our law. The meaning
of ‘purport[ing] to solemnise a marriage' was made clear in a recent Australian case. In 2014, Imam Muhammad Riaz Tasawar was prosecuted for conducting an unauthorised marriage, a religious event in a private house (4). He pleaded guilty and was fined $500. He escaped the gaol sentence but had his Religious Leader's visa cancelled and is understood to have been deported. There are other instances which appear to show that the Australian legislation is working (5). Because anyone in New Zealand can perform a ceremony of their own design, call it a marriage, and claim that thereafter the two parties are married, the act of marriage and the meaning of the ceremony are not as well protected as they are in Australia. Had we had similar phrasing in our legislation, the imam who conducted the religious ceremony “marrying” Mr Mohib to his second wife would have been guilty of a criminal offence. More likely, no “marriage ceremony” would have taken place. With no such legislation in place there is nothing to stop such marriages becoming ever more widespread Australian case. In 2014, Imam Muhammad Riaz Tasawar was prosecuted for conducting an unauthorised marriage, a religious event in a private house (4) .He pleaded guilty and was fined $500. He escaped the gaol sentence but had his Religious Leader's visa cancelled and is understood to have been deported. There are other instances which appear to show that the Australian legislation is working (5). Because anyone in New Zealand can perform a ceremony of their own design, call it a marriage, and claim that thereafter the two parties are married, the act of marriage and the meaning of the ceremony are not as well protected as they are in Australia. Had we had similar phrasing in our legislation, the imam who conducted the religious ceremony “marrying” Mr Mohib to his second wife would have been guilty of a criminal offence. More likely, no “marriage ceremony” would have taken place. With no such legislation in place there is nothing to stop such marriages becoming ever more widespread.
Mr. Mohib's case also illustrates the spread of a culture and the possible eventual acceptance of a legal system which is contrary to western values and practices, namely, sharia. Mr Mohib has taken advantage of a feature of sharia, namely, the right of a man to have more than one wife, while he would deny the equivalent right to both his wives. Should this practice become widespread, we in NZ would find ourselves accepting ever greater inroads into our national life of a practice, the underlying values and a belief system that are all contrary to those we currently promote, the most relevant one here being the equality of the sexes.
Against the arguments made above is an argument made by Mr Mohib himself, although not in words I would use. As Humanists, we place an emphasis on freedom of thought, expression and action. As long as no harm is done to one person by another, we have no reason to condemn an action and no reason to promote laws which constrain freedom to act in harmless ways. Mr Mohib claims that all three parties to the arrangement he has with the mothers of his children accept it voluntarily and that he is doing no harm. The family has appeared on television without any apparent coercion. He could reasonably claim that their domestic arrangements are no-one else's business. Is he right?
The question that I would like to pose is this: what do we want marriage to mean? If our answer is the same as the one defined by the Marriage Act 1955, which in section 23 explicitly confines a marriage relationship to one between two people only, and therefore wish to protect it as a social institution defined in this way, then we need to make our law similar to the Australian one. The two-person view of marriage was not altered by the Marriage (Definition of Marriage) Amendment Act 2013 which legislated for same-sex marriage. On the other hand, if we as a nation are content to see the term widened in meaning so that anyone can conduct any kind of ceremony and define marriage in any way they choose, as Mr Mohib does, then should we adopt that view explicitly and abandon the protection the institution of marriage has been given till today? Mr Mohib would then have to allow one or both of his wives to have another husband. In principle, abandoning our current legislation would enable any number of people of both sexes, four men and three women for example, to be joined in a single relationship they choose to call a marriage. Is this necessarily bad and if so, why?
We seem to have a few options. First, we can tighten our definition of the marriage ceremony and the way in which it takes place by aligning our legislation with Australia's, second, we can change the meaning of marriage to mean something other than the relationship between two people or third, we can do nothing. There may be other options. The one arrangement that I am confident would not get national approval is the one in which men may have more than one wife but women may not have more than one husband, the institution of polygyny. However, the do-nothing option will likely lead to this with increasing frequency. As a country, we are being forced to ask ourselves for a second time what do we want the institution of marriage to consist of and mean? Are we ready to face up to the question or will we do nothing?
First published in the March 2017 Humanist NZ newsletter https://humanist.nz/newsletter/march-2017/
References -
(2) http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11720158 Use the slide bar to get to the Auckland High Court Registry entry and look at paragraph [6].
(3) Buss, D.M. (2000). Dangerous Passion: Why Jealousy is as Necessary as Love and Sex.
(5) http://www.theaustralian.com.au/news/probing-polygamy/news-story/a9b8890af4c03464f0ef00a7aa70faa9