Guidance

Polygamous / potential polygamous marriages: SET14

Published 13 November 2013

This guidance was withdrawn on 18 March 2022

This guidance is out of date and has been withdrawn.

1. SET14.1 The Rules and polygamous spouses

Paragraphs 278 - 280 cater for applications from:

• wives of polygamous marriages - polygamy is the practice of having more than one wife at the same time; or
• husbands of polyandrous marriages - polyandry is the practice of having more than one husband at the same time.

This ensures that the Immigration Rules relating to the admission of spouses are not discriminatory.

2. SET14.2 Validity in the UK of polygamous / potentially polygamous marriages (general)

The ECO should consider first whether the marriage is valid under the laws of the UK:

Marriage validity flowchart, which is available on this guidance page.

2.1 Actual polygamous marriages celebrated on or after 1 August 1971

The marriage is valid in the UK if the answer to the two following questions is ‘yes’:

1. Did both parties have the personal capacity under the law of his / her domicile to enter into the marriage? Precisely what personal capacity involves will vary from one legal system to another, but it may well include the parties not being within any prohibited degrees of relationship (that is, not being too closely related, for example, brother and sister, mother and son), the parties having reached the minimum age at which marriage is lawful, and the parties being respectively male and female. (Note: No person domiciled in any part of the UK has the capacity to enter into a polygamous marriage. Section 11(d) of the Matrimonial Causes Act 1973 is the authority regarding a party domiciled in England and Wales. The Act states that a marriage is not polygamous if at its inception neither party has any spouse additional to the other. There is corresponding legislation for Scotland and for Northern Ireland.)
2. Is the marriage valid under the laws of the country in which it was celebrated, that is, did the form of the polygamous marriage ceremony comply with the requirements of the laws of that country?

The ECO should be in the best position to determine whether a particular marriage is valid under the laws of the country in which it was celebrated as the entry clearance application will normally be made in the same country.

Guidance on determining a person’s domicile is contained in SET15 Domicile.

2.2 Actual polygamous marriages celebrated before 1 August 1971

The recognition (or otherwise) of polygamous marriages celebrated before 1 August 1971 is a matter of common law.

2.3 Potentially polygamous marriages

An amendment to the Matrimonial Causes Act 1973 by the Private International Law (Miscellaneous Provisions) Act 1995 means that all potentially polygamous marriages which are actually monogamous (that is, both partners are only married to each other) are regarded as valid. This is fully retrospective. Such applicants are therefore subject to the usual criteria of the Rules for spouses (see SET03 Spouses). The marriage will, however, be deemed to be void by any subsequent marriage by one of the parties, or by an annulment.

3. SET14.3 Polygamous wives

This section should be read in conjunction with the general guidance above on the validity in the UK of polygamous / potentially polygamous marriages.

Section 2 of the Immigration Act 1988 prohibits certain polygamous wives from exercising their right of abode with the result that any application from such a wife has to be considered in accordance with paragraphs 278 to 280 of the Rules, which contain provisions to restrict settlement in most cases to one wife.

Section 2 of the Act states that no wife who has the right of abode in the UK under section 2(1)(b) of the 1971 Act (as amended) on the basis of her polygamous marriage, and who has not prior to 1 August 1988, and since her marriage to her husband been in the UK, should be allowed to enter the UK in the exercise of that right of abode (or be granted a certificate of entitlement in respect of that right) if there is another woman living who is the wife or the widow of the husband and who:

1. is, or at any time since her marriage to the husband has been, in the UK; or
2. has been granted a certificate of entitlement in respect of the right of abode under section 2(1) (b) of the 1971 Act (as amended) or an entry clearance to enter the UK as the wife of the husband.

Any woman who claims that section 2 of the 1988 Act does not apply to her must prove her claim by showing either:

1. she has been in the UK prior to 1 August 1988 and since her marriage to her husband; or
2. she has been in the UK since her marriage to her husband and at a time when the husband was not married to a woman as described above.

A marriage may be considered polygamous under section 2 of the 1988 Act even though at its inception neither party had any spouse additional to the other.

A polygamous wife who is either prohibited from exercising her right of abode under section 2 of the Immigration Act 1988 or who never had it, will, unless she is a returning resident (see section below on polygamous spouses entering under their own right), have to apply for entry clearance if she wishes to join her husband in the UK.

In accordance with paragraph 278, entry clearance should be refused if the woman’s husband has another wife living who:

• is or, at any time since her marriage to the husband, has been in the UK; or
• has been granted a certificate of entitlement in respect of the right of abode under section 2(1) (b) of the 1971 Act as amended; or
• has been granted an entry clearance to enter the UK as the wife of the husband.

Paragraph 279 states that the above restrictions will not apply to a woman who can prove that:

• she has, before 1 August 1988, and since her marriage to the husband, been in the UK as the wife of her husband; or
• she has, since her marriage to her husband, been in the UK at any time when he was not married to a woman as is described in the provisions of Paragraph 278 of the Rules (see above).

Such a woman should be treated as though she were not a polygamous spouse.

The presence of any wife in the UK as a visitor, illegal entrant or on temporary admission does not count for the purposes of considering an application from a polygamous spouse.

4. SET14.4 What if the marriage is not valid under the laws of the UK?

If the marriage is not valid under the laws of the UK, the spouse should be refused on that ground alone without considering the other requirements of the Rules relating to spouses.

5. SET14.5 What if the marriage is valid under the laws of the UK?

If the marriage is valid, the ECO should then consider whether the spouse qualifies for admission to the UK under the Rules (paragraphs 277-281). When applying the Rules for polygamous spouses it is not the order in which polygamous spouses marry which is crucial but the order in which they go to the UK.

Guidance in assessing this is given in the SET15 Domicile.

6. SET14.6 Children of polygamous spouses

If a polygamous spouse is disqualified by the Immigration Act / Rules from entering the UK, any children he or she had by his or her spouse may not qualify for entry to the UK and should be refused under paragraph 296, depending on the circumstances and in particular the operation of the Legitimacy Act 1976 (see SET07 Children).

7. SET14.7 Polygamous spouses entering in their own right

A polygamous spouse may have an entitlement to enter the UK in his / her own right, for example, as a returning resident. A man / woman who obtained settlement in the UK on the basis of a marriage which has since ended and who travels to another country has the right to return to the UK as a returning resident under paragraph 18 of the Rules, provided that he / she does so within the 2 year limit.

A polygamous spouse may also enter in his / her own right as a visitor or a student, provided that he / she meets in full the requirements of the relevant paragraphs of the Rules.

A polygamous spouse will not, however, qualify for entry clearance in a temporary capacity leading to settlement (for example, as a spouse of a work permit holder) if that would result in the formation of a polygamous household in the UK.

8. SET14.8 Termination of a previous marriage

A polygamous spouse may apply for entry clearance and support the application by claiming that a previous marriage (which would otherwise disqualify him / her) has been dissolved or terminated by the death of the spouse concerned. The ECO should be wary of death and divorce certificates in such circumstances, especially where talaq or customary laws are involved.

Any case where there is evidence that a divorce of convenience has occurred should be referred to Family Operations Policy for consideration and advice.

Guidance on talaqs / customary divorces is given in SET13 Overseas divorces.

9. SET14.9 What is the endorsement for potentially polygamous spouse?

Where a potentially polygamous marriage is monogamous:

See ECB13 Visa endorsements and conditions

10. SET14.10 What immigration conditions apply upon entry to a potentially polygamous but actually monogamous marriage?

Indefinite leave to enter (ILE) can be granted where the sponsor has right of abode / indefinite leave to enter and:

• The couple have been married for at least 4 years and have been living together outside the UK during that time; and
• The applicant has demonstrated ‘Knowledge of language and life in the UK (KOL)’ (see SET16 Knowledge of Language and Life in the UK).

Where an applicant has satisfied all of the requirements for indefinite leave to enter (ILE) except the KOL requirement, they should be granted 27 months leave to enter. During this time they can, at any point, satisfy the KOL requirement and then apply for ILE.

11. SET14.11 Do polygamous / potential polygamous spouses have a right of appeal?

Yes, they have a full right of appeal.