Polygamous Marriage, Monogamous Divorce

Abstract

The question of whether the fundamental right to marry might also include the right to polygamy is one that has long intrigued legal scholars. In the wake of Obergefell v. Hodges, that question has taken on even greater significance. Although other scholars have attempted to answer this question, this Article does so in a novel way. Specifically, this Article looks at the practice of polygamy through a law and economics lens, exploring the ex ante consequences of legalization, not on practicing polygamists, but on serial monogamists — i.e., those who never intend to have more than one spouse at any given time but are, nonetheless, prone to marry more than one person in their lifetime. When looked at in that manner, the degree to which legalized polygamy would harm the state becomes much more evident. After all, if polygamy were legal, the current laws prohibiting bigamy would no longer be in operation. In turn, separating couples would lose one of the strongest incentives they currently face to pursue formal divorce in lieu of simply deserting one another. In essence, then, a serial monogamist could marry multiple times in his lifetime without ever getting a divorce, safe in the knowledge that his actions are no longer subject to a criminal charge of bigamy. Such actions — dubbed “sequential polygamy” — are quite harmful to the state’s substantial interest in protecting its citizens from financial harms. Indeed, the current law of divorce is designed to encourage separating couples to elect that formal course of action so as to provide the state some assurance that those leaving a marriage are not doing so to their financial detriment. With the legalization of polygamy then, goes the prohibition against bigamy, thus eroding the state’s ability to encourage divorce as a means of protecting all its citizens; but in particular its poorest citizens, who would likely be hardest hit by any societal shift away from formal divorce.