Subsequent marriage while a prior marriage exists is an essential element of the offense of bigamy. Even a common law marriage is sufficient to constitute a subsequent marriage. In many states of the U.S., a written agreement between parties to live together as man and wife and followed by cohabitation is considered a common law marriage.
The process of going through a contract as a second marriage without dissolving a first marriage constitutes bigamy[i]. A prior valid marriage always renders a subsequent marriage as null and void. However, the act of subsequent marriage constitutes the offense.
The jurisdiction of the offense decides the statutory provision involved in a criminal case. The jurisdiction is determined by the state in which the offense occurs[ii]. Therefore, a statute can penalize a crime committed by a person only when the crime is committed within the state. However, the scope of bigamy has been extended where statutes hold it punishable to cohabitate in a state after a bigamous marriage[iii]. According to such statutes, the place of second marriage is not material. It constitutes a criminal offense of bigamy when a person, who has another spouse from a valid marriage, marries again. The offense is supposed to have been committed in the state where the parties to the subsequent marriage are cohabiting.
Generally, a person is restricted from marrying for a certain period after divorce. A marriage during the prohibited period will constitute bigamy and the violator can be prosecuted[iv]. However, if a second marriage is solemnized outside the state where there is prohibition, the law of the state where the marriage occurred will be considered. If the law of that state allows marriage within the restricted period, the marriage will be valid as long as it is not against public policy[v].
Generally, when a person marries in another state during the pendency of divorce proceedings and returns to the state to cohabit with the second wife during the prohibition period under the divorce decree, that person may be liable under the offense of bigamy[vi].
[i] Ex parte Brinkman, 93 W. Va. 351 (W. Va. 1923)
[ii] Ex parte Ward, 85 Okla. Crim. 281 (Okla. Crim. App. 1947)
[iii] People v. Shaw, 259 Ill. 544 (Ill. 1913)
[iv] Fitts v. Fitts, 284 Ala. 109 (Ala. 1969)
[v] Ng Suey Hi v. Weedin, 21 F.2d 801 (9th Cir. Wash. 1927)
[vi] Eldridge v. State, 126 Ala. 63 (Ala. 1899)