Table of Contents Table of Contents
Previous Page  15 / 48 Next Page
Information
Show Menu
Previous Page 15 / 48 Next Page
Page Background

15

in the United States in polygamous marriages that

were valid in the country where the marriages were

celebrated. The argument in

Obergefell

, that the

freedom to choose whom to marry is protected by

the Fourteenth Amendment, will have to be weighed

against the argument that you are free to marry more

than one other person. Some American polygamists

have one legal marriage to one woman and

“spiritual” marriages to one or more other women.

The state of Utah criminalized such relationships. In

2013, a Federal District Judge invalidated the Utah

law purporting to criminalize cohabitation with more

than one woman, but left intact the ban on marriage

to multiple partners.

30

Texas Penal Code Section

25.01 criminalizes bigamy, which it defines as a

married persons purporting to marry or marrying

someone other than his spouse “in this state, or any

other state or foreign country . . . ” The statute also

criminalizes a married person living with a person

not his or her spouse “under the appearance of being

married.”

31

Thus, Texas law criminalizes polygamous

marriages around the world. The Texas statute also

makes it a crime to be married and to live “with a

person other than his spouse in this state under

the appearance of being married.”

32

The statute

defines “under the appearance of being married”

as “holding out that the parties are married with

cohabitation and the intent to be married by either

party.”

33

These are the same elements required to

prove an informal marriage in Texas.

34

Temporary Marriages

The Islamic law recognized by Shi’i Muslims makes

a distinction between permanent marriage (nikah)

and temporary marriage (nikah mut’ah). Permanent

marriage, like marriage in “the West,” lasts until

divorce or death. Nikah mut’ah, in contrast, lasts

for a period of time agreed upon in advance, and

when the end is reached the marriage automatically

annuls itself. The BBC News reports that the practice

is followed by many Muslims in England. Nikah

mut’ah is not recognized as valid in the Suni branch

of Islam.

When a Texas court encounters persons who

have a nikah mut’ah, will it respect the temporary

nature of the marriage? Will it enforce provisions in

the marriage agreement for the payment of a dowry

(mahr) to the woman, or her parents, to the exclusion

of a property division or spousal maintenance?