In order for an act to constitute the criminal offense of bigamy, there must be the existence of at least one of the following elements:
- Prior marriage,
- Subsequent marriage,
- Intention to violate the law,
- Cohabitation or sexual intercourse.
Prior marriage has always been the foundation of bigamy. A Legal marriage which existed prior to the current bigamous marriage is a prior marriage. The validity of the prior marriage is determined according to the law of the land where the marriage was solemnized. A prior marriage must be either valid or voidable to complete the offense of bigamy. A prior marriage that is void will not constitute the offense of bigamy.
A marriage conducted pending a prior marriage is a subsequent marriage. The argument that a subsequent marriage is a common law marriage will not protect one from bigamy[i].
The intention to violate the law has not been recognized as a material element of bigamy by U.S courts. The courts are of the opinion that mere performance of a second marriage itself shows the intention to commit bigamy. Thus proof of criminal intention is not necessary in a prosecution for bigamy[ii]. However, some courts have expressed the view that criminal intention is an element of bigamy and it needs to be proved.
If there is a second marriage, sexual intercourse or cohabitation is an immaterial element. In such cases the aggrieved party need not show evidence of cohabitation[iii]. However there are some cases were statute has laid down the contrary rule. In such cases, proof of cohabitation or sexual intercourse are essential to establish bigamy.
[i] People v. Mendenhall, 119 Mich. 404 (Mich. 1899)
[ii] Long v. State, 192 Ind. 524 (Ind. 1922)
[iii] Green v. State, 232 Ind. 596 (Ind. 1953)