As part of family law enquiries, people often ask “what is bigamy?” Bigamy occurs when a person marries another person when they are already married to a person from their first marriage.
Is bigamy illegal? Yes, in fact, bigamy is a criminal offence in Australia. It is a part of polygamous marriages or polygamous lifestyle with more than one person which results in multiple partners, i.e multiple wives or husbands from prior marriage or initial marriage.
Section 92 of The Crimes Act 1900 states that: Whosoever, being married, marries another person during the life of the former spouse (including husband or wife), shall be liable to imprisonment for seven years.
In relation to bigamy, the Marriage Act 1961 is the legislation as opposed to the Family Law Act 1975. Section 94 of the Marriage Act 1961 states that a “person who is married shall not go through a form or marriage ceremony with any other person in a second marriage.”
It is necessary to note that a recommitment ceremony with their current spouse is not an offence. In many instances, parties wish to renew their vows and hold a recommitment ceremony.
This is not bigamy. What is bigamy? It happens when a person marries another person, even when they are still previously married to someone else. Let’s suppose that Jelena marries Jacob. But, Jelena is still legally married to Harry. So, Jelena is committing the offence of bigamy.
What Is Bigamy Punishment? Are There any Defences?
The penalty for bigamy can include imprisonment term of up to 5 years. A person may also be penalised if they knowingly go through with a marriage ceremony with an already married person. In the state of New South Wales (NSW), the penalty for bigamy can include imprisonment for up to 7 years. The relevant prosecuting authority can sentence the offender.
Courts may consider some genuine defences if you have been charged with the offences of bigamy. If you were wondering ‘what is bigamy’, chances are you were also keen to find out about any legally valid or legally recognised defences against this.
Given below are some defences that courts may consider:
- If you thought that your first spouse was deceased (presumed dead) at the time of your new marriage.
- Your spouse had been absent for an extended period of time, and in such circumstances, you had a reasonable ground to assume that your spouse was deceased i.e. you made a reasonable mistake.
- Your spouse had been absent for a period of seven years before the date of the alleged offence or bigamy offence, and so you had no reason to believe that they were alive.
As part of defence against the charge, the defendant has to prove any of the above to the court beyond reasonable doubt. The court can receive as evidence of facts the original marriage certificate according to the Marriage Act 1961.
Case Study Example
In the 2015 family law case of Amarnath & Kandar FamCA 1138, the wife commenced legal proceedings against her husband. During the course of the proceedings, the court found that the wife was married to another man.
Because they never got a divorce, her marriage with the other man never ceased to exist. The Judge had to refer this matter to the Attorney General as the wife’s actions breached the Marriage Act 1961.
Moreover, it is necessary to know about the Notice of Intended Marriage Application Form. Parties need to complete this form according to Regulation 38 of the Marriage Regulations 1963. In this form, you must disclose all information truthfully.
Have You Committed Bigamy? Steps to Take
Now that you have an understanding of what is bigamy, you should also be aware of necessary steps to take. If you think you have committed bigamy, there are multiple things you have to consider.
Firstly, you may have to look into annulment or decree of nullity. When a court grants a decree of nullity, it results in marriage being void and it declares that the marriage was never legal in the first place. This is because the party was already married to someone else at the time of the subsequent marriage.
Importantly, when reading up on ‘what is bigamy?’ you should also consider ways in which you can prevent bigamy.
Given below are some provisions as stated in the Marriage Act 1961 hat can help prevent bigamy:
- Section 42 states that for the solemnisation of marriage, an authorised marriage celebrant must preside over the marriage. Moreover, the parties must present official documents that includes a written notice and declaration. They must declare their belief that there is “no impediment to the marriage.”
- S (100) states that it is an offence for a celebrant to solemnise a marriage if they believe that there may be a legal impediment to it.
- Section 104 states that it is an offence for a person to provide a notice to a celebrant if the person knows that there is a false statement on the notice.
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