Bigamy

Bigamy (from Lat. bis, twice, and Gr. γάμος, marriage), in English law. according to the statute now in force (24 and 25 Vict. c. 100, § 57), the offence committed by a person who “being married shall marry any other person during the life of the former husband or wife.” In the canon law the word had a rather wider meaning, and the marriage of a clerk in minor orders with a widow came within its scope. At the council of Lyons (A.D. 1274) bigamists were stripped of their privilege of clergy. This canon was adopted and explained by an English statute of 1276; and bigamy, therefore, became a usual counterplea to the claim of benefit of clergy. However, by an act of 1547 every person entitled to the benefit of clergy is to be allowed the same, “although he hath been divers times married to any single woman or single women, or to any widow or widows, or to two wives or more.”

A bigamous marriage, by the ecclesiastical law of England, is simply void. By a statute of 1604 the offence was made a felony. This statute, after being repealed in 1828, was re-enacted and reproduced in the Offences against the Person Act 1861. It is immaterial whether the second marriage has taken place within England and Ireland or elsewhere, and the offence may be dealt with in any county or place where the defendant shall be apprehended or be in custody. The following clause embodies the necessary exceptions to the very general language used in the definition of the offence.—“Provided that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a British subject, or to any person marrying a second time whose husband or wife shall have been continuously absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by any court of competent jurisdiction.” The punishment is penal servitude for not more than seven nor less than five years, or imprisonment with or without hard labour, not exceeding two years.

A valid marriage must be proved in the first instance in order to support a charge of bigamy. A voidable marriage, such as were marriages between persons within the prohibited degrees before the Marriage Act 1836, will be sufficient, but a marriage which is absolutely void as all such marriages now are, will not. For example, if a woman marry B during the lifetime of her husband A, and after A’s death marry C during the lifetime of B, her marriage with C is not bigamous, because her marriage with B was a nullity. In regard to the second marriage (which constitutes the offence) the English courts have held that it is immaterial whether, but for the bigamy, it would have been a valid marriage or not. An uncle, for example, cannot marry his niece; but if being already married he goes through the ceremony of marriage with her he is guilty of bigamy. In an Irish case, however, it has been held that to constitute the offence the second marriage must be one which, but for the existence of the former marriage, would have been valid. With reference to the case in which the parties to the first marriage have been divorced, it may be observed that no sentence or act of any foreign country dissolving a vinculo a marriage contracted in England by persons continuing to be domiciled in England, for grounds on which it is not liable to be dissolved a vinculo in England will be recognized as a divorce (R. v. Lolley 1812, R. & R. 237). Hence, a divorce a vinculo for adultery, in a Scottish court, of persons married in England, is not within the statute. But if a person charged with bigamy in England can prove that he has been legally divorced by the law of the country where the divorced parties were domiciled at the time (even though the ground on which the divorce was granted was not one that would justify a divorce in England) it will be good defence to the charge. Criminal jurisdiction is always regarded as purely territorial, but bigamy (together with homicide and treason) is an exception to this rule. A British subject committing bigamy in any country may be tried for the same in the United Kingdom (Earl Russell’s case, 1901).

In Scotland, at the date of the only statute respecting bigamy, that of 1551, cap. 19, the offence seems to have been chiefly considered in a religious point of view, as a sort of perjury, or violation of the solemn vow or oath which was then used in contracting marriage; and, accordingly, it was ordained to be punished with the proper pains of perjury.

Bigamy was punished in England until the reign of William III. by death, then the penalty changed to life imprisonment and branding of the right hand. An act of George I. still in force lessened the penalty to deportation for seven years or imprisonment for two years with or without hard labour. The Offences against the Person Act 1861 changed deportation to penal servitude.

In the United States the law in regard to bigamy is practically founded on the English statute of 1604, with the exception that imprisonment and a fine, varying in the different states, were substituted instead of making the offence a felony. Congress has passed a statute declaring bigamy within the territories and places within the exclusive jurisdiction of the United States to be a misdemeanour (U.S. Rev. Stat. § 5352). By statute in some states, upon absence of one spouse from the state for five years without being heard of, the other may marry again without committing bigamy, in other states the period is seven years. In most of the states, prosecutions for bigamy are barred after the lapse of a certain number of years. The marriage wherever solemnized must be a valid marriage according to the law of the place of solemnization; if void there, no prosecution for bigamy can be founded upon it. In some jurisdictions, an honest belief that a prior divorce of one of the parties was valid would be a defence to a prosecution for bigamy, in others the contrary is held.

On the continent of Europe, bigamy is punishable in most countries with varying terms of imprisonment, with or without hard labour, according to the circumstances of the case.

See Stephen, History of Criminal Law; Dicey, Conflict of Laws; Report of the Royal Commission on Marriage Laws (1868).

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