In this article, we outline Sections under the Crimes Act (1900) in relation to bigamy in NSW. Bigamy occurs when a person is married to multiple partners at the same time, and it is illegal in Australia.
The Crimes Act in NSW outlines points in relation to the offence of bigamy. Interestingly, the Marriage Act 1961 also criminalises bigamy in Australia. Section 94 of the Marriage Act (1961) states that “a person who is married shall not go through a form or ceremony of marriage with any person.” We provide further details of Section 94 of the Marriage Act below.
Note that the concept of bigamy is governed by both federal and state laws. Before we explore Sections relevant to bigamy, here is an overview on the topic of bigamy in Australia.
Bigamy and the Law
Essentially, prohibiting bigamy allows for the safeguard of rights and interests of individuals who are involved in marital relations. Traditionally, marriage has always been considered to be a sacred institution. Criminalising bigamy helps to uphold the institution of marriage and of monogamy.
Moreover, parties may often engage in bigamy for fraudulent motives. Spouses may be exploited – and the law prevents this by criminalising bigamy. For instance, family law includes matters related to property settlements and inheritance, which may be exploited by people if bigamy were legal.
Section 92: Bigamy in NSW
Section 92 of the Crimes Act states the following in relation to bigamy:
Whosoever, being married, marries another person during the life of the former spouse (that is husband or wife), shall be liable to imprisonment for seven (7) years.
Moreover, provided that no person shall be convicted under this section whose spouse (including husband or wife) has at the time of such second marriage been continually absent from such person for the space of seven years, or if domiciled in NSW at the time of the first marriage.
Section 93: Participator in Bigamy in NSW
This Section of the Crimes Act in relation to bigamy in NSW states that whoever, whether married or unmarried, marries the spouse of any person not continually so absent, as in the proviso to Section 92 mentioned, knowing him or her to be married, and the former wife or husband to be alive, shall be liable to imprisonment for five (5) years.
Marriage Act 1961: Bigamy
Marriage Act 1961 is a federal act that is applicable to all states in Australia, and not just NSW.
Subsection (1) of Section 94 of the Marriage Act states that a person who is married shall not go through a form or ceremony of marriage with any person. The penalty for this is imprisonment for 5 years.
Subsection (1A) states that strict liability applies to the physical element of circumstance, that the person was married when the form or ceremony took place.
What could be defences against bigamy as per Section 94 of the Migration Act?
It is a defence to a prosecution for an offence against Subsection (1) if the defendant proves that:
- at the time of the alleged offence, the defendant believed that his or her spouse was dead; and
- the defendant’s spouse had been absent from the defendant for such time and in such circumstances as to provide, at the time of the alleged offence, reasonable grounds for presuming that the defendant’s spouse was dead.
Read more about Section 94 of the Marriage Act (1961) here.
Seeking advice about Bigamy in NSW from Family Lawyers and Criminal Lawyers
As noted above, if found guilty of bigamy, individuals can face penalties including imprisonment. For more information on this, reach out to our criminal lawyers. At JB Solicitors, we have leading Sydney family lawyers as well as criminal lawyers who can provide you with the right legal advice.
Contact us for more information.
