Lessons from Islamic Polygamy: A Case forExpanding the American Concept ofSurviving Spouse So As to IncludeDe Facto Polygamous Spouses

Table of ContentsI. Introduction 1462II. Transcendental Nature of Values Contained in the Spirit of Islamic Law 1465III. History of American Jurisprudence's Approach to Polygamy.... 1467IV. Methods for Implementing the Egalitarian Spirit of Early Islam in Polygamy 1474V. A New Redefinition of Surviving Spouse in Estate Distribution 1478VI. Conclusion 1480I. IntroductionIt is reported that President Lincoln responded to a group of congressmen eager to step up the early campaign against polygamy with an anecdote about an old log on his childhood farm: "It was too heavy to move, too hard to chop, and too green to bum. So we just plowed around it."1 When it comes to de facto polygamy,2 our jurisprudence has traditionally adopted a policy similar to that enunciated by President Lincoln. Utah has traditionally stood as the symbol for the practice of polygamy in the United States.3 What is less discussed, however, is that multi-party unions are not only limited to Utah, Church of Jesus Christ of the Latter-day Saints, or Islam.4Although polygamist Mormons and polygamist Muslims are outwardly viewed as the most extreme departures from the traditional idea of the American family, nontraditional families are still to be found in America.5 Explorations into the lives of American families reveal that many Americans participate in multi-party unions either expressly or tacitly.6 In this Article, this practice is referred to as "de facto polygamy."7 Arguably, multi-party unions have existed in the United States for some time.8 These unions are often only exposed, for example, when a spouse discovers that his or her life partner has been carrying out an extra-marital affair with someone else for many years or when a married father reveals the existence of extra-marital children, another household he supports, or a common law marriage with another spouse.9While polygamy is illegal in the United States,10 forms of it are still practiced either overtly, pursuant to religious traditions,11 or covertly, by the maintenance of two or more family units.12 Historically, the prosecution of polygamists has been rare in the United States, and a growing tolerance has been shown towards them.13 Still, no form of polygamy is recognized in the United States.The practice of de facto polygamy exists outside of the law. Some of those forms include multi-party common law marriages and marriages coupled with extramarital common law unions.14 It has been estimated that as many as 60,000 individuals practice polygamy in the United States.15 This number, however, does not include individuals' secret or underground participation in multi-party unions. As a result, any claims, disputes, or abuses that arise in the context of de facto polygamous unions remain irremediable. For example, when the de facto polygamist unions terminate either by death or separation, individuals who are parties to such unions are not able to benefit from the same legal protections as those provided to "de jure spouses" under inheritance or divorce laws of our jurisprudence.My focus, in this Article, is not to advocate that polygamy should be legally recognized. Nor is it my purpose to debate the viability or morality of polygamy. Instead, I am concerned with affording legal remedies for vulnerable individuals living and operating in de facto polygamous unions. In light ofthe thousands of individuals living in some form of multi-party unions, I propose that it is imperative16 to construct adequate legal options and remedies for the parties involved in these unions. …