Prior Marriage


Bigamy is a misdemeanor that is committed when a person married to more than one person at the same time.  A person can only be guilty of the offense of bigamy when their prior marriage is a valid one[i]. Bigamy cannot be committed if the prior marriage is void or is terminated.  In the U.S., if a husband or wife is absent and unheard of for seven years and not known to be alive, s/he is presumed dead, and remarriage by the other spouse is not considered bigamous.  A voidable prior marriage can also form a base for an action in bigamy[ii]. The jurisdiction of a bigamy suit is based on where the marriage was conducted[iii].

Generally, when a prior marriage is void, the subsequent marriage will be legal.  If a person marries a woman who was already involved in a void married, it will not result in bigamous marriage.

If a man marries a second wife during the lifetime of the first is will be a bigamous marriage.  However, if the first marriage is terminated, the second marriage can be converted to a valid marriage.

When the prior marriage of a man is dissolved being void by a court of competent jurisdiction, the man can claim that the subsequent marriage is not bigamous. 

In some states, license provided to a marriage is purely based on fulfilling certain formalities.  In these states a second marriage without terminating the first marriage will be bigamous[iv]. However, in some other states statutes provide that a marriage conducted without license is considered void.  Under such circumstances, the first marriage will not be valid and therefore, a second marriage will not come under the offense of bigamy[v].

In common law marriages, the consent of parties are taken in the public.  The common law marriages are solemnized following the traditional ceremonies prevalent in a state.  Proof of consent is provided by assent by both parties.  The crime of bigamy can be based on the proof provided under a common law marriage.

In common law marriages consent of both parties to the marriage is given before public.  In some states, a ceremonial marriage can be held void if a prior marriage exists.  This would amount to lying under oath and the person can be prosecuted for bigamy.  However, if a person continues to live with a second spouse after termination of a prior marriage this will be considered as a common law marriage which is valid.  In such circumstances, if a person marries again during the existence of the common law marriage the person can be prosecuted under bigamy law.  This rule can only be applied when the prior marriage is terminated by death or divorce, and the accused and the second wife has continuously cohabited as man and wife.

If a woman lives with a man after good faith without knowledge of a prior marriage or its later termination will not be a basis for an action based on bigamy if the person abandons the woman to marry again in some jurisdictions.  This is because such a marriage will not constitute a common law marriage.  However, in some states such cohabitation constitutes a common law marriage which is valid.  Therefore, if a person abandons his second wife of common law marriage, he can be prosecuted for bigamy[vi].

Remarriage of persons divorced in another state is not void only on the fact that it took place within the time prohibited by statute in a state.  This can form basis for a third marriage for one of the parties in the same state.

If remarriage is prohibited for a certain period after divorce in a state, the rule will render a marriage in another state before expiration of the period as valid.  This will act as a basis for action under bigamy if the person commits a third marriage in the state[vii]. However, if the marriage is held at a foreign state for evading local state law the marriage will not be valid and the person cannot be prosecuted for a third marriage conducted in the state[viii].

A marriage during the period forbidden for remarriage will be valid when they continue to live together after the forbidden period.  A subsequent marriage by any of the parties without terminating the existing marriage will be bigamous[ix].

[i] People v. La Marr, 20 Cal. 2d 705 (Cal. 1942)

[ii] State v. Yoder, 113 Minn. 503 (Minn. 1911)

[iii] McPeek v. McCardle, 888 N.E.2d 171 (Ind. 2008)

[iv] Haggin v. Haggin, 35 Neb. 375 (Neb. 1892)

[v] Nelson v. Marshall, 869 S.W.2d 132 (Mo. Ct. App. 1993)

[vi] Bennett v. State, 100 Miss. 684 (Miss. 1911)

[vii] Hall v. Baylous, 109 W. Va. 1 (W. Va. 1930)

[viii] People v. Woodley, 22 Cal. App. 674 (Cal. App. 1913)

[ix] Smith v. Smith, 247 Ala. 213 (Ala. 1945)