Fault-based Divorce: Bigamy

Introduction

Bigamy is a criminal offense. It is the act of entering into a second marriage willfully and knowingly during the existence of the valid bond of a first marriage. Some states consider bigamy as a ground for fault-based divorce.

Bigamous Marriage

Bigamous marriages are considered void or voidable, provided the first marriage is in existence and is a valid marriage. When a bigamous marriage has occurred, the spouses from the second marriage will not have any legal status as husband or wife because the marriage itself is void under the law. The offense of bigamy is punishable by imprisonment. In a case of bigamy, the first marriage is considered as a part of the offense's "corpus delicti." It is the second marriage, not the first marriage, which attracts criminal liability. A person charged with bigamy may defend the charge by showing that he or she reasonably believed that his or her first marriage was void or was terminated by annulment, death, or divorce.

Elements of Bigamy

Entering into a second marriage during the existence of a first valid marriage is the basis for the offense of bigamy. If the respondent shows that his or her first marriage was dissolved by annulment, divorce, or death before entering into the second marriage, then he or she has not committed the offense of bigamy. Bigamy also is known as an appropriate ground for claiming an annulment.

In many states, if a spouse is absent or not heard from for seven or more years or is presumed to be dead, and if the other spouse remarries after that seven-year period, then the remarriage is not considered bigamy and is not punishable under law. Some states use five years rather than seven.

Fault-Based Divorce and Bigamy

In most states allowing fault-based divorce, a conviction for bigamy is sufficient to justify granting a divorce to the offender's second spouse. Because bigamy is a criminal offense, it is not up to the divorce judge to determine whether a respondent has committed bigamy. A proper conviction in a criminal proceeding usually constitutes prima facie evidence of bigamy.

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