Sexual Intercourse or Cohabitation

Bigamy is the unlawful marriage of a person with another person when there is an existing wife/husband[i]. To prove that the crime of bigamy was committed the complainant should produce evidence of a prior marriage and a subsequent marriage.

Generally, bigamy is committed when a second marriage is performed while the first marriage is not terminated.  Sexual intercourse or cohabitation is not necessaryfor one to be guilty of bigamy[ii]. The misdemeanor is committed when the second marriage is solemnized.   The second marriage will have the status of an unlawful contract that should be punished[iii]. Bigamy is not a continuing offense.  The offense of bigamy is considered complete when the ceremony of second marriage is completed[iv]. The persons can have separated after solemnizing the second marriage.  However, offense of bigamy is completed even in such conditions[v].

The misdemeanor of bigamy is proved by providing evidence of a valid prior and subsequent marriage.  A prior or subsequent marriage is proved by giving evidence of sexual cohabitation.  In certain states, cohabitation following a bigamous relationship is made a separate offence which is punishable.

If a person commits a second marriage while the first marriage is not dissolved and the person continues to cohabit with the spouse of the subsequent marriage it will amount to bigamy.  There should be proof of continuous cohabitation to prove that there is a valid subsequent marriage.  However, subsequent cohabitation is not a part of the crime.  The parties to the subsequent marriage should live together as husband and wife in a fixed location.  The cohabitation should be continuous rather than an occasional or temporary relationship[vi]. The cohabitation need not have actual sexual intercourse.  The term continuous cohabitation means living together as husband and wife with or without having sexual relationship between parties[vii].

In some cases people live inside a house as husband and wife but may have abandoned conjugal relationship.  External evidence regarding abandonment of cohabitation will help to neutralize the feeling of living in an illicit relationship[viii].

[i] Ex parte Ward, 85 Okla. Crim. 281 (Okla. Crim. App. 1947)

[ii] Green v. State, 232 Ind. 596 (Ind. 1953)

[iii] Pitts v. State, 147 Ga. 801 (Ga. 1918)

[iv] People v. Hess, 286 A.D. 617 (N.Y. App. Div. 1955)

[v] Hopson v. State, 115 Tex. Crim. 260 (Tex. Crim. App. 1930)

[vi] State v. Lewis, 46 Wn.2d 438 (Wash. 1955)

[vii] State v. Miller, 42 W. Va. 215 (W. Va. 1896)

[viii] Granberry v. State, 61 Miss. 440 (Miss. 1883)


Inside Sexual Intercourse or Cohabitation