A crime of bigamy is committed when a person solemnizes a second marriage while the spouse by a former marriage is still alive and the former marriage is still in force[i]. In the U.S., it is illegal to stay legally married to more than one person at the same time.
Bigamy is not committed when first marriage of a person is terminated. When a spouse of the first marriage is dead, or when the marriage is declared null and void by a court, a person can marry again.
Continuous cohabitation is an essential element in the crime of bigamy. The misdemeanor of bigamy is proved by providing evidence of a valid prior and subsequent marriage. A prior or subsequent marriage is proved by giving evidence of sexual cohabitation. In certain states, cohabitation following a bigamous relationship is made a separate offence which is punishable.
The parties to the subsequent marriage should live together as husband and wife in a fixed location. The cohabitation should be continuous rather than an occasional or temporary relationship[ii]. The cohabitation need not have actual sexual intercourse. The term continuous cohabitation means living together as husband and wife with or without having sexual relationship between parties[iii].
However, bigamy is not a continuing offense. The offense of bigamy is considered as complete when the ceremony of second marriage is completed[iv]. The persons can have separated after solemnizing the second marriage. However, offense of bigamy is completed even in such conditions[v]. Sexual intercourse or cohabitation is not necessary to fix the guilt of a person[vi].
Pursuant to the general principles regarding aiders and abettors, a person who aids, assists, counsels, or procures a bigamous marriage can be guilty of an offense[vii].
A person comes under the offense of bigamy only when the prior marriage is a valid one[viii]. 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 action under bigamy[ix]. 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 other states statutes provide that a marriage conducted without license is void. Under such circumstances, a first marriage without license will not be valid and therefore, a second marriage will not come under the offense of bigamy[x].
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[xi].
A subsequent marriage solemnized while a prior marriage exists is an essential element of the offense of bigamy. A common law marriage is sufficient to constitute a subsequent marriage. The jurisdiction of the offense is determined by the state in which the offense occurs[xii].
The intention of the accused is not an essential ingredient in bigamy offense. Bigamy is a statutory offense. When the legislature has not introduced the element of intention in the offense of bigamy, courts have no right to decide the cases based on the intention of accused[xiii]. In most states, courts have held that guilty intention is presumed when second marriage is solemnized.
The only exceptional circumstances where intention to commit bigamy cannot be presumed is when a person’s former spouse was not known to be alive for a period of time prescribed in statutes,[xiv] or when a person has obtained a valid divorce.
[i] Ex parte Ward, 85 Okla. Crim. 281 (Okla. Crim. App. 1947)
[ii] State v. Lewis, 46 Wn.2d 438 (Wash. 1955)
[iii] State v. Miller, 42 W. Va. 215 (W. Va. 1896)
[iv] People v. Hess, 286 A.D. 617 (N.Y. App. Div. 1955)
[v] Hopson v. State, 115 Tex. Crim. 260 (Tex. Crim. App. 1930)
[vi] Green v. State, 232 Ind. 596 (Ind. 1953)
[vii] State v. Warady, 78 N.J.L. 687 (E. & A. 1910)
[viii] People v. La Marr, 20 Cal. 2d 705 (Cal. 1942)
[ix] State v. Yoder, 113 Minn. 503 (Minn. 1911)
[x] Nelson v. Marshall, 869 S.W.2d 132 (Mo. Ct. App. 1993)
[xi] Hall v. Baylous, 109 W. Va. 1 (W. Va. 1930)
[xii] Ex parte Ward, 85 Okla. Crim. 281 (Okla. Crim. App. 1947)
[xiii] State v. Sherwood, 68 Vt. 414 (Vt. 1896)
[xiv] Baker v. State, 86 Neb. 775 (Neb. 1910)