Absence of First Spouse for Statutory Period


A spouse commits the offense of bigamy when s/he marries another during the existence of former marriage.  Proof that a wife was living at the time of the second marriage is essential for conviction for bigamy.  However, the fact that a spouse has been absent for a prolonged period during which it was not known whether the absent party was alive is a legitimate defense.  In common law, a spouse who has been absent and unheard of for seven years is presumed to be dead and the other spouse is permitted to contract a valid marriage.  The statutory periods of absence vary from state to state, although five years is generally what is accepted.  In some jurisdictions, there is no specified period of time.  According to Ky. Stat. § 2101 a marriage valid in another state where it was solemnized is valid in Kentucky.  In the absence of pleading and proof, the presumption is that the common law as administered in Kentucky prevails in the other state.  For example, according to Ky. Stat. § 1216, a person whose spouse has absented and not been heard for a period of five years preceding the last marriage, the one not knowing the other to be alive, is excluded from a punishment for bigamy[i].

The legality of a second marriage depends upon the ignorance of the party as to the life or death of an absent husband or wife.  The absence must be a continuous one and should immediately precede the second marriage.  However, continuous absence for five years itself will not excuse a second marriage if it was known to the party that the absent husband or wife is living.  There must be the continuous absence connected without the knowledge that the absent party was alive[ii].

The prerequisites for a presumption of death after seven years of continuous absence are:

  • the person must disappear from his/her last known abode, domicile, or residence.
  • the person must neither return there to nor communicate with those with whom s/he will naturally communicate, if alive, during the ensuing period of seven years.
  • a reasonable inquiry must be made at his/her last known place of abode of the persons who will naturally hear from him/her without obtaining information indicating that s/he is alive.

If these prerequisites are proved, a rebuttable presumption of death arises, which can be disproved by evidence that the party presumed to be dead is alive.  However, this presumption of death is not conclusive, and the law cannot deprive an absentee of his estate if he is alive[iii].

The burden is on the defendant to show as a matter of defense that his/her spouse had absented himself/herself for a span of seven years before the second marriage, and that he/she was ignorant of the fact that the spouse was alive[iv]. Where an absent spouse has been unheard of for a period of five years, there is a presumption that he or she is dead.  However, there is no specific burden on a defendant to exercise reasonable diligence and make diligent inquiry to ascertain whether or not he can ascertain facts to overcome the presumption which the law raises for his own protection.  It is sufficient that the defendant, based on persuasive and reliable information reasonably believed that the spouse was dead[v].

Absence, from which death of a spouse is presumed, is absence abroad.  This means that absence from a former place of abode, where nothing has been heard of the absent spouse by those who would naturally have heard of him, if alive.  However, a husband cannot avail himself of such a statutory exception when he has driven his first wife off.  Such involuntary departure, being absence procured by the defendant himself, is not an absence that will excuse the defendant from inquiry even after the lapse of the statutory period[vi].

[i] Strode v. Strode, 66 Ky. 227 (Ky. 1867)

[ii] Jones v. State, 67 Ala. 84, 86 (Ala. 1880)

[iii] Estate of Morrison v. Rosewell, 100 Ill. App. 3d 891, 895 (Ill. App. Ct. 1st Dist. 1981)

[iv] State v. Lyons, 3 La. Ann. 154 (La. 1848)

[v] Robinson v. State, 6 Ga. App. 696 (Ga. Ct. App. 1909)

[vi] Parker v. State, 77 Ala. 47 (Ala. 1884)