Defenses

If a person, who is married, goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife will be guilty of bigamy.

When a person’s former spouse was absent for a certain period of time s/he can remarry after a prescribed statutory period.  The spouse should have been unreachable even after a reasonable search.  However, the person cannot remarry within the prohibited period[i]. Remarriage within the prohibited period will constitute a bigamy offense.  However, the defense of mistake was provided by some states where due care was taken to know about the whereabouts of the missing spouse.

In a bigamy case a defense of mistake cannot be raised even if a defendant believed in good faith that a prior marriage was terminated by divorce when actually prior marriage is not dissolved.  A second marriage cannot be contracted without a divorce being finalized[ii].

If a prior marriage is terminated no bigamy case will be valid.  However, if the divorce decree is not valid in a state where the prosecution is brought such a divorce will have no effect[iii]. The general principle is that ignorance of law is not an excuse is applied in cases when a divorce from a foreign land is not valid in a state[iv]. Statutes provide that a person divorced cannot legally remarry for a certain period of time.  Remarriage within the prohibited period will amount to bigamy[v]. Defense of ignorance of law will not stand in such cases.

In some states, it is not a valid defense when a person contract’s a second marriage on the belief that the first marriage was void[vi]. A person’s belief that want of license in a first marriage will render it void is not a defense.  An accused’s belief that a contract between parties annulled first marriage is also not a defense[vii].

Bigamy conducted on the basis of religious faith cannot be accepted as a defense by courts.  If a religion allows polygamy, a person who is a believer of the religion cannot claim protection under First Amendment[viii].

Coercion or duress to marry can be a defense in a bigamy case.  The defendant is supposed to provide evidence that at the time of subsequent marriage the defendant was put under personal constraint[ix]. However, when a married person seduces a woman and to escape from charges of seduction marries the woman, the person cannot claim defense of coercion to escape charges under bigamy[x].

An offense of bigamy is completed when a second marriage is contracted[xi]. However, the indictment for bigamy should be within a statutory period of limitation.  Whenever cohabitation is also made an additional crime along with bigamy the time period only starts when cohabitation stops.

Annulment of a second marriage will not be a defense in a bigamy case.  The offense of bigamy is started when a second marriage is contracted[xii].

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

[ii] United States v. Gelbert, 121 F. Supp. 414 (D. Ill. 1954)

[iii] State v. Sellers, 140 S.C. 66 (S.C. 1926)

[iv] Eagle v. Nowlin, 94 F. 646 (D. Ind. 1899)

[v] Barfield v. Barfleld, 139 Ala. 290 (Ala. 1903)

[vi] Hiram v. Pierce, 45 Me. 367 (Me. 1858)

[vii] People v. Klock, 55 Misc. 46 (N.Y. County Ct. 1907)

[viii] United States v. Miles, 2 Utah 19 (Utah 1877)

[ix] Acosta v. State, 660 S.W.2d 611 (Tex. App. Corpus Christi 1983)

[x] Welch v. State, 46 Tex. Crim. 528 (Tex. Crim. App. 1904)

[xi] Ex parte Brinkman, 93 W. Va. 351 (W. Va. 1923)

[xii] Cairns v. Richardson, 457 F.2d 1145 (10th Cir. Kan. 1972)


Inside Defenses