Home >> Business Encyclopedia And Legal Adviser >> Bank Rate to Clearing >> Bigamy

Bigamy

marriage, husband, wife, person, time, bigamous and prove

BIGAMY is a felony punishable by penal servitude or imprisonment. Whoever, being married, marries any other person during the life of the former husband or wife, whether the sect nd marriage takes place in England or Ireland, or elsewhere, is guilty of the crime. But a person not a subject of his Majesty, w ho contracts a second marriage elsewhere than in England or Ireland, could not be convicted of bigamy. Nor could a person be con victed for marrying a second time whose husband or wife has been continually absent from such person for the space of seven years then last past, and was not known by such person to have been living within that time. A divorced person, or one whose former marriage has been declared void by sentence of any court of competent jurisdiction, does not incur the penalties of bigamy upon marrying a second time. It will lie upon the prosecution to prove the first marriage ; but if the accused can prove that this marriage was absolutely void at the time of its celebration he will escape conviction. Marriage with a deceased wife's sister was, until recently, a familiar instance of an absolutely void marriage, even though it may have been solemnised in a country where such marriages were valid. The subse quent marriage must also be proved, for it is that second marriage which constitutes the offence : and it should be noticed that it is not even so much the second marriage in fact, as going through the form of a second marriage. Thus, in a well-known case, the prisoner, during the life of his wife, went through the ceremony of marriage with his niece, whom, because the parties were within the prohibited degrees of affinity, valid marriage was impossible, apart from the fact of the existing first marriage; it was never theless held that the second marriage was bigamous, and the prisoner was accordingly convicted. It must not, however, be understood that every fantastic form of marriage to which parties might think proper to resort, or a marriage ceremony performed by an unauthorised person, or in an unauthorised place, would constitute a bigamous second marriage. It is sufficient, said Chief Justice Cockburn, that where a person already bound by an existing marriage goes through a form of marriage known to, and recognised by, the law as capable of producing a valid marriage ; for the purpose of a pretended and fictitious marriage, the case is not the less bigamous by reason of any special circumstances which, independently of the bigamous character of the marriage, may constitute a legal disability in the particular parties, or make the form of marriage resorted to inapplicable to their individual case.

The prosecution must also prove that the first husband or wife was alive at the time of the solemnisation of the second marriage; and if that fact is not proved conclusively, it will be sufficient if such facts are proved as will satisfy the jury as a strong, almost irresistible inference therefrom, that he or she was in fact so alive. The first wife cannot give evidence either for or against her husband so as to prove any part of the case, but the second wife may. The only defences to a charge ot bigamy, apart from denial of alleged facts, have been now all referred to. It will, however, be useful to refer to the case of Reg v. Tolson. There the prisoner was convicted of bigamy by reason that she went through the ceremony of marriage within seven years after she had been deserted by her husband, the jury finding, however, as a fact that at the time of the second marriage she, in good faith and on reasonable grounds, believed her husband to be dead. That finding of the jury saved her, and as a consequence the conviction was quashed, for it is a good defence to an indictment for bigamy that the jury is satisfied that the accused at the time of contracting the bigamous marriage fide believed, and had reasonable grounds for the belief, that his or her wife or husband was dead; and this is so, even when the wife or husband has been continually absent from the accused for seven years, or such period had not elapsed at the time of the second marriage since the accused last knew of his or her wife or husband being alive. The result is that if one of a married couple has disappeared under such circumstances as would satisfy the Court of Pro bate, or an insurance company, that he or she had died, the survivor is entitled to re-marry : but great caution sliould be exercised before taking such a step.