The Second Wife Is Also Allowed to Stay

Muslim second wives often fall through the cracks in the legal system. But now a court in Germany has granted an Iraqi second wife a residence permit – for humanitarian reasons. By Cosima Schmitt

Khedr S. has solved his second-wife problem. The recognized refugee wants to share his life with both his spouses, but up until now the German justice system was willing to give only one of the wives the right to residency.

Now the situation has changed, though.

At the end of March, the Higher Administrative Court of Rhineland-Palatinate decreed that the second wife is also entitled to stay – an exception to German law.

The decision highlights a fundamental problem: Muslim second wives are simply not provided for in our legal system, at least in terms of public law. German law is completely oriented around monogamy. One husband, one wife: this is the only relationship protected by "spouse's privileges".

If Germany were to exist in complete isolation, this would not pose a problem, since polygamy is a crime punishable by law in this country. However, for a long time now there have been a great many couples living here without a western-style marriage certificate or German passports. Khedr S., for example.

This Iraqi has been living in the Federal Republic of Germany since 1996 and has been granted asylum here. He left behind two wives back home: the first one he married in 1977, and the second in 1990. Both women entered Germany illegally in June 1999.

And that spelled the end of the legitimacy of their living situation: wife No. 1 was granted a residence permit, while wife No. 2 was merely tolerated – and reacted by going to court to fight against her uncertain status.

The court ruling – an exception

Her first hearing was unsuccessful, but when she appealed the decision, the second set of judges ruled in her favor. They emphasized, however, that this was an exception: since the Iraqi woman had been living in Ludwigshafen for several years already and was well-integrated into German society, and because her life and livelihood back in her homeland would be extremely precarious, she would be granted residency.

The judges were unable to invoke the statutory spouse's privilege in their ruling, but justified their decision instead as a humanitarian gesture.

Polygamy is against the law

This decision is symptomatic for the circuitous way in which polygamy is dealt with by the German legal system. After all, polygamy is in principle against the law. The compromise judges have come up with: if a foreigner marries more than one wife in his homeland in accordance with the applicable laws of that country, he will not be prosecuted on that count when he later immigrates to Germany.

The judiciary system makes an exact distinction here: polygamy is not recognized by public law. Therefore, only the first wife is permitted to join her husband if he is granted asylum in Germany. The reason behind this ruling is the fear that the system could be abused.

In civil law polygamy is recognized

For example, a Muslim might decide to marry all of the women in his harem in order to guarantee as many of them as possible the right to live in Europe. In civil law, however, polygamy is recognized.

If a couple separates, a second or third wife may also claim alimony.

"At the time the law was formulated, no one could have imagined that one day polygamous marriages would exist in Germany. Now we are trying to pass judgments in such a way that the second wives do not end up completely bereft of protection and rights," says Mathias Rohe, Professor of Law in Erlangen and an expert on conflicts between Islam and German law.

The Federal Social Court in Kassel, for example, decided in favor of protecting a second widow in a specific case.

The length of the marriage is immaterial

A Moroccan woman living in the Rhineland had decided to taken legal action when her husband of 37 years, also Moroccan, died. Now she was expected to share his pension with the second wife, forty years younger than she.

She alone should be entitled to the money, the first wife argued, or at least she had earned the larger share of it. After all, her husband had married the other woman just three years before his death.

But the judges ruled that the length of the marriage was immaterial; both wives were entitled to equal shares of the pension.

As far as taxes go, however, a second wife has no place on the tax return of her husband, the Tax Court in Münster ruled in 1986.

Claiming two wives on the tax return

A Moroccan wanted to claim both wives on his tax return. But both the revenue office and the court rejected this idea.

A man may claim only his first wife under the favorable income tax splitting procedure for married couples, the judges say. Muslim organizations know all about this cultural conflict in the marriage arena and urge people not to make a public issue of it.

The Internet forum, muslim-heirat.de, for example, asks "brothers who are already married" not to place personal ads looking for additional wives.

This also implies that whoever is unable to bring his second wife over to Germany cannot simply go out and find a new wife.

Bureaucratic frustration in place of the joy of multiple marriages – that is the reality of polygamy in Germany.

Cosima Schmitt
© taz, 1 April 2004

Translation from German: Jennifer Taylor-Gaida

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