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Legal Depository: Bigamy

By Na’Yeesha

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Bigamy is the condition of having two wives or two husbands at the same time. The second marriage to someone who is already legally married is void and may be annulled, while there is no effect on the first marriage. A person who knowingly commits bigamy is guilty of a crime, but it is seldom prosecuted unless it is part of a fraudulent scheme to get another’s property or some other felony. However, it should not be confused with polygamy.

Bigamy may be accidental, such as when the previous divorce was not finalized due to a technicality, or the previous spouse who was presumed dead is alive. It is not necessarily a defense to a charge of bigamy that the offending party believed in good faith that he was divorced or that his previous marriage was not lawful.

Section 370 of the Criminal Code Acts provides that:
“Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for seven years.”

In R v Princewill (1931) 10 N. L. R 33, the accused while a Christian, married under the marriage Act in 1950. He later became a Moslem, and in 1960 he married again under the Islamic law which recognises polygamous marriages. The court held that BIGAMY is committed.

However, after considering the authorities, I interpret Section 370 of the Criminal Code as follows: There must be a husband and a wife living and one of them must ‘marry’ so that the second marriage is ‘void’ by reason of its taking place during the life of such husband and wife.

The defenses to a charge of bigamy are:

  • Where it can be shown that the first marriage was void ab initio.
  • That the marriage has been declared void by a competent court.
  • The honest belief of the death of other spouse or the absence or disappearance of the other spouse for a period of seven years and,
  • Where either party honestly or reasonably believes that the previous marriage is invalid.

Bigamy is a marriage in which one of the parties is already legally married. Bigamous marriages are void and grounds for annulment. Local laws should be consulted, but typically a person who discovers they are married to a bigamist may have a judge declare the marriage void and seek to have criminal charges filed against the bigamist. A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse.

State criminal laws governing bigamy vary by state, some allowing for stiff fines and punishment. To fraudulently induce one to enter into a bigamous marriage contract has been held to be a compensable wrong, and the resulting mental pain and suffering would support an independent action for damages.

Laws vary by state, but generally, a person does not commit bigamy if:

“He reasonably believes that his previous marriage is void or was dissolved by death, divorce or annulment; or he and the prior spouse have been living apart for a defined number of consecutive years next prior to the subsequent marriage, during which time the prior spouse was not known by him to be alive.”

The burden of raising such defenses is on the defendant, but this does not shift the burden of proof.

The following is an example of an Alabama statute dealing with bigamy:

“A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse. A person who contracts a marriage outside this state, which would be bigamous if contracted in this state, commits bigamy by cohabiting in the state with the other party to such a marriage.

A person does not commit an offense under this section if:

  • he reasonably believes that his previous marriage is void or was dissolved by death, divorce or annulment;
  • or he and the prior spouse have been living apart for five consecutive years next prior to the subsequent marriage, during which time the prior spouse was not known by him to be alive.

The burden of injecting the issues under this subsection is on the defendant, but this does not shift the burden of proof. Bigamy is a Class C felony.”

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