Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.

Mistake of Law or Fact

Bigamy is a statutory offense.  Bigamy means being married to two persons at the same time.  The subsequent marriage is not considered valid when a prior marriage is valid.  However, a second marriage is valid if the first marriage is terminated.

Mistake of law or fact is a defense used by defendants in the offense of bigamy.  In some states in the U.S., a person, whose former spouse has been absent for a certain period of time, can remarry after the statutory period.  The spouse will be considered not to be alive if unknown for a prescribed statutory period.  However, the person cannot remarry within the prohibited period[i]. Remarriage within the prohibited period will constitute a bigamy offense.  Mistake of fact cannot be claimed as a defense in such circumstances[ii].

However, some states have provided the defense of mistake in some cases of bigamy where due care was taken to know about the whereabouts of the missing spouse.  Pursuant to that rule, if a person remarries on honest belief that the former spouse is dead after reasonable research, the defense of mistake can be provided.

Defense of mistake cannot be raised in a bigamy case even if a defendant believed in good faith that a prior marriage was terminated by divorce.  A second marriage cannot be contracted without a divorce being finalized[iii].

However, if a person is misinformed by a counsel or prior spouse that divorce is finalized after the person’s reasonable researches for the facts and is then misled, the person’s actions can be justified[iv].

A prior divorce is a defense in bigamy cases.  However, if the divorce decree is not valid in a state where the prosecution is brought such a divorce will have no effect[v]. The general principle is that ignorance of law is not an excuse[vi]. This principle is applied in cases when a divorce from a foreign land is not valid in a state.  However, if a person bonafidely believes that a divorce from a foreign land is valid and remarries in that belief after reasonable enquiry to abide by law, ignorance or mistake of law can be taken as a defense.

Some states provide in the divorce decree that a person divorced cannot legally remarry for a certain period of time.  Remarriage within the prohibited period will amount to bigamy[vii]. Defense of ignorance of law will not stand in such cases.

A contract of separation or actual judicial separation will not constitute a divorce.  Therefore, a person who marries after a separation without termination of prior marriage can be prosecuted under bigamy.

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[viii]. 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[ix].

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

[ii] White v. State, 183 Miss. 351 (Miss. 1938)

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

[iv] State v. Sherwood, 68 Vt. 414 (Vt. 1896)

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

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

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

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

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


Inside Mistake of Law or Fact