Polygyny is a practice that entitles a man to have more than one spouse. In an attempt to recognise the cultural and religious rights of different communities, polygyny is recognised as legally valid for African communities in South Africa and may be legal for South African Muslim communities if the Muslim Marriages Bill is enacted in its current form.

Yet, recognition of polygyny has resulted in what Ayelet Shachar calls the ‘paradox of multiculturalism’. While cultural and religious rights of groups are respected, the individual rights of vulnerable members within that group are infringed upon. For instance, polygyny discriminates against the female members of African and Muslim communities because it does not afford them the same right to have multiple spouses.

Furthermore, polygyny impacts on the female members of those communities in a way that negates their right to substantive equality. For example, in the context of intestate succession, it is possible that a polygynous wife who has contributed substantially more to the maintenance or increase of her deceased husband’s estate would have to unfairly share the estate equally with other polygynous wives.

Moreover, the consent of the first wife or existing wives is not required for a man to contract multiple marriages. Therefore, the existing wife’s agency is denied. In the context of Muslim marriages, the existing wife’s choice is further repudiated by the fact that she believes she is unable to exit the marriage without her husband’s consent or the consent of the ‘ulama (learned community) with faskh (annulment). Although Shari’a entitles women to divorce themselves without requiring their husband’s or the ‘ulama’s consent in exchange for returning their mahr (mandatory gift from a groom to a bride) to their husbands – a process named khul’a – many are unaware of their right to do so or have been culturally conditioned to believe that it is wrong to do so.

In 2007, a Malaysian NGO called Sisters in Islam (SIS) conducted an extensive study on the effects of polygyny on all parties involved. The study reveals that not only are wives negatively affected in a financial and emotional manner, children and husbands are also negatively affected on an emotional basis. The study is available at openDemocracy.

The Malaysian study shows that where men are unable to properly maintain their multiple families, women are usually required to supplement the income of the respective households and many comprise the breadwinners of those households. In addition, polygynous wives tend to suffer from depression because they have to deal with the reality that they have to share their husbands’ attention (sexual and otherwise) with other women and other families. Their depression has a knock-on effect on their children who feel neglected by their mothers and become resentful toward their mothers.

In particular, children of first marriages usually experience their parents’ polygynous relationships more acutely than children of subsequent marriages. For instance, they feel the absence of their father and the loss of resources more severely, whereas children of subsequent marriages are always aware that there is another family that they have to share their father’s time and resources with. Nevertheless, the Malaysian study confirms that all children of polygynous marriages usually perpetuate the dysfunctional nature associated with those relationships by not being able to engage in stable relationships of their own later in life.

As for the Malaysian men who were interviewed, the study discloses that they experience polygynous marriages as stressful and would not recommend it for their own sons.

While the above study was conducted in the context of Malaysian polygynous marriages, the lessons learnt are globally applicable and are most likely experienced by polygynous parties in South Africa as well. Perhaps a similar comprehensive study needs to be undertaken in South Africa to determine if the legal framework should be geared towards deterring polygyny instead of encouraging it, as it promises to do within the Muslim context and as is currently the case within the context of African communities.

Although polygyny appears to be permitted by Shari’a provided that a man can treat his polygynous wives justly (Qur’an 4:3), many Muslim scholars argue that Shari’a strongly encourages monogamy. Therefore, a regulated form of polygyny such as is implemented in Pakistan and Malaysia would not be un-Islamic. In fact, Tunisia, which is a Muslim country, has abolished polygyny on the basis that it is religiously justifiable to do so. Tunisia relied on a combination of the Qur’anic verses 4:3 and 4:129, which permits the interpretation that polygyny should not be allowed since a man will not be able to treat his polygynous wives justly.

It cannot be denied that polygyny is inherently discriminatory while monogamy offers the potential of an equal relationship between parties. Yet, infidelity, extramarital relationships, extramarital families and serial polygyny (where spouses in monogamous marriages divorce each other and marry others) can occur in monogamous marriages as well. The problem is thus not the structure of the relationship, but the nature of the relationship. In other words, the patriarchal underpinnings of marital relationships or life-partnerships result in power imbalances and inequality between men and women. The aim should, therefore, be to work toward an egalitarian society where intimate and family relationships are based on an understanding of substantive equality for all involved. This will necessarily entail an equalising of the power relations between men and women in long-term relationships and the availability of equal negotiating tools for both parties.

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* Waheeda Amien is a lecturer in the law faculty at the University of Cape Town. She writes in her personal capacity.
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