1902 Encyclopedia > Bigamy


BIGAMY, according to the statute now in force (24 and 25 Vict. c. 100, § 57), is 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 widow came within its scope. At the Council of Lyons (1274 A..D.) bigamists were stripped of their privilege of clergy. This canon was adopted and explained by the English statute 4 Edward I. st. 3, c. 5 ; and bigamy, therefore, became a usual counterplea to the claim of benefit of clergy. However, by 1 Edward VI. c. 12, § 16, 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 the statute 1 James I. c. 11, confirmed by later statutes, the offence was made a felony. It is immaterial whether the second marriage has taken place within England end Ireland or elsewhere, and the offence may be dealt with in any county or place where the defendant shall be appre-hended 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 subject of Her Majesty, 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 servi-tude 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 5 and 6 Will. IV. c. 54, 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 can dissolve an English marriage a vinculo for grounds on which it is not liable to be dissolved a vinculo in England (R. v. Lolley, in Russell and Ryan's Criminal Cases, 237). Hence, a divorce a vinculo for adultery, in a Scotch court, of persons married in England is not within the statute.

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. But this injunction has not in every instance been complied with ; and, from considerations of policy or expediency, the court has long been in the habit of in-flicting an arbitrary punishment, suited, as nearly as may be, to the degree of guilt brought home to the prisoner. Neither marriage need be regular, but it is not yet settled whether a marriage constituted by habit and repute, or by promise subsequente copula, can be relevantly libelled in a charge of bigamy. The parties to the first marriage must, of course, have been lawfully entitled to marry. It is a good defence that the accused was divorced from his first wife before contracting the second marriage, even though the decree should afterwards have been set aside, unless it has been obtained corruptly and set aside for that reason. It is also a good defence that, at the time of contracting the second marriage, the accused had reasonable grounds for believing the other spouse to be dead. To constitute the crime of bigamy, it is not necessary that the second marriage should be such that, but for the first marriage, it would have been legal The punishment is imprisonment, and occasionally penal servitude.

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