Bigamy is the act of marrying while a lawful spouse by a former marriage is still alive and the former marriage still in force[i]. Dissolution of prior marriage by death, divorce or annulment is a valid defense to the charge of bigamy. However, annulment of the bigamous marriage is no defense to the crime of bigamy. Annulment of prior marriage before subsequent marriage is a valid defense to the offense of bigamy. Annulment can be declared as a legal procedure for declaring a marriage null and void. The grounds on which a marriage can be declared as annulled are:
- Force; or
- Physical incapacity.
The legal effect of annulment is that, once granted, it is as if the marriage never existed. A marriage is retrospectively considered invalid from the beginning after annulment.
An action or proceedings for annulment differ from those for divorce. No rights accrue to the parties in an annulment proceeding[ii]. However, annulment of a bigamous marriage is immaterial to the general question of guilt of bigamy[iii].
In United states v. Bradshaw[iv], appellant’s marriage to his first wife was stormy and interrupted by separations. Hence the appellant filed a suit for divorce. However, no divorce action was successfully maintained. The appellant did not see his wife for a long time. The appellant received letters from her telling him she had instituted divorce proceedings and they were divorced. The appellant asked for a copy of the decree, but was not served one. The appellant married again. Later he found that he was not divorced to the prior marriage. The appellant approached a civilian attorney and had his second marriage annulled. The appellant was tried by general court-martial and found guilty of bigamy. The appellant appealed from that order, and the appellate court reversed the order.
A bigamous marriage does not acquire validity although a prior subsisting marriage is legally terminated by divorce; death of the first spouse or by the annulment of prior marriage, after the second marriage is contracted. Even though the purpose of an annulment proceeding is to declare that no valid marriage ever took place between the parties or that no valid marriage relation ever existed between the parties, annulment of marriage will not render a bigamous marriage valid. Even where an annulment decree expressly declares the first marriage null and void ab initio, it does not relate back and validate the second marriage[v]. For a subsequent marriage to be valid, there must be a new ceremony following the termination of the earlier marriage.
[i] United States v. Lee, 32 M.J. 857 (N-M.C.M.R. 1991)
[ii] Abelt v. Zeman, 173 N.E.2d 907 (Ohio C.P. 1961)
[iii] United states v. Bradshaw, 15 U.S.C.M.A. 146, 148 (C.M.A. 1964)
[iv] 15 U.S.C.M.A. 146, 148 (C.M.A. 1964)
[v] Lukich v. Lukich 368 S.C. 47, 55 (S.C. Ct. App. 2006)