Hebbadj, who acquired nationality on his marriage to a French woman and has lived in France for most of his life, has retorted that three of the women are not his wives, but his mistresses. He said: “If we are stripped of nationality, for having mistresses, then there would be a lot of French people stripped of nationality…As far as I know, mistresses are not forbidden, neither in France, nor in Islam.” Mr. Hebbadj could be stripped of his nationality if it can be shown that he was already married at civil law to someone else when he acquired French nationality by a further marriage. If this is not the case, he appears to be on firm ground. Article 25 of the French Civil Code describes the circumstances in which a person may be stripped of French nationality. In 2006, five naturalised citizens lost their nationality for commission of terrorist acts. While French law does not permit anyone to be civilly married to more than one person on pain of a hefty fine or a year’s term of imprisonment, and while evidence that a person is living in a polygamous marriage may be grounds for refusal of naturalization for failure to assimilate, neither polygamous practice after the acquisition of nationality nor welfare fraud comes within the reach of Article 25. However, Eric Besson, the immigration minister, has expressed interest in legislative reform to address this gap: in his view a polygamous lifestyle is incompatible with the commitment to France’s fundamental values which ought to characterise the naturalised French immigrant. The organisation SOS Racisme rejects any such reform, arguing that it will create a legal distinction between ‘true French’, whose status is permanent and ‘paper French’ whose status is vulnerable to reversal.
Mr. Hebbadj’s intervention is interesting for a number of reasons. It is a clear instance of a French Muslim making skilful use of the media, of his lawyer (and perhaps the law of defamation) to speak ‘back’ to – and indeed embarrass - a government which has pinned many of its political hopes on the domestication of Islam. It toys in humorous fashion with ideas of Frenchness and French belonging which are at the centre of that government’s approaches to the veil, and it highlights the ambivalent position of polygamous families in France. A man may, for example, enter into a religious marriage (though French imams ought to refuse to marry a couple who cannot produce a certificate of civil marriage) with a woman in France while he is civilly married to another (see Fadela Amara here). Or he may divorce a woman to whom he is civilly married, and civilly marry a new wife, and establish a family with both of them. These are two of many possible combinations of civil, religious and foreign law. In this situations, the relationships between him, his wives and their children, are in practice family relationships – with all the social and familial benefits and harms that family life entails for their members. Yet one or more of the marriages which ground that family will not be recognised at French civil law because polygamy is not permitted at civil law, and thus, certain public goods connected to the legal status of those marriages will not be available to all members of that family (see Pascale Fournier here at 68-69).
This third point is important because it opens the question of how men and women may move strategically between spaces which are variously regulated or unregulated (or in the case of multiple household polygamy – extremely difficult to regulate) by French civil law to achieve various practical goals. It raises the further question of how individuals’ power to make those moves – their mobility within and between those spaces – is affected by their marital status at civil law and by the immigration status and employment status to which it is tightly bound (see here). What we see in France’s re-engagement with polygamy is the sort of double-bind that occurs when the state wishes to deny the status of marriage to a particular intimate relationship but wishes also to have control over the consequences of that relationship. By banning polygamy at civil law, the state denies itself the opportunity to regulate and reshape polygamy on its own terms. At the same time, for as long as it recognises family relationships formed outside civil marriage the state is open to polygamy’s re-entry into civil law in other guises – the guise of the ‘unmarried lone’ parent, for example. Rather than close off that re-entry entirely, the Besson proposal would operate – amongst other things – as a disincentive to the formation of polygamous marriages, presumably in the hopes that their consequences would fade away over a long period of time.
Where are women in all of this? Certainly, some commentators have latched onto the ‘double oppression’ where women who wear the burqa live in polygamous marriages. But this is not France’s first brush with polygamy (see Cook and Kelly at pp 52-54) and its past experience gives good reason for caution from a women’s rights perspective. For decades, France permitted men who had married more than one woman under the laws of countries where polygamy was permitted to bring all of their wives to France with them on long-term visas, even though polygamous marriages could not be contracted in France itself. Ostensibly, the move to prevent the transplantation of polygamous marriages to France was originally motivated by a concern for the welfare of women who were living in France in polygamous marriages under very poor economic and social conditions; for instance in cramped housing. The Pasqua laws of 1993 introduced a one-migrant-one-spouse family reunification rule, removed social welfare entitlements for second wives (hence the new attention to the ‘lone parent’ loophole) and provided that residence permits would not be renewed for men who headed polygamous households. Most controversially, they heralded a policy of decohabitation which, in its original incarnation, compelled polygamous families to split into separate households as a condition of legal residence. Legal residence is a condition of legal work, though it should be noted that the parent of a French citizen child cannot be deported. This retroactive policy was softened was applied flexibly for a time. However its remainders became starkly visible in 2000 when the first large batch of residence permits issued before 1993 came up for renewal and the decohabitation policy began to be enforced properly. Decohabitation from any polygamous household remains a condition of legal residence for immigrants to France. It has driven some families – those who would not divorce for reasons of principle or who were too poor to afford alternative accommodation – to make the decision to live as sans-papiers. That said, since 2001, the decohabitation regime has become focused on providing women with the means to exit polygamous households if they so wish (see this advisory opinion of the French national human rights commission here); for instance, through the provision of housing and appropriate training. Of course, as SOS Femmes note, a second wife who has entered France illegally may find it difficult to access the decohabitation regime even if she chooses to, since any attempt to leave with state assistance would involve drawing attention to her already risky relation to the immigration regime If this latest focus on polygamy is to pay attention to the needs of women, the government must recall in the first instance that there are significant gaps between (i) preventing the formation of polygamous marriages in the first place (ii) policy aimed at assisting women to leave unwanted polygamous marriages (iii) involuntary separation of existing families (see Starr and Brilmayer here). In the second instance, the persistence of polygamy in France despite efforts to eradicate it ought to have turned attention to migrants’ strategic negotiations of the legal obstacles placed before them. A humane policy on polygamy will look to law’s shadows as well as its text.
