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Elements of the Offense of Bigamy

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)

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