The charge of Bigamy is used where the police think a person is legally married to 2 or more people.
This is a charge that would be heard in the Magistrates’ Court.
Examples of Bigamy
- A person just moved to Australia from England. In England, the person has a wife from whom he separated 3 years ago, but did not divorce. The person gets married in Australia without getting divorced from his first wife.
- A person separated from her previous husband 4 years ago. She marries someone without first getting divorced from her first husband.
We had a client who was married in India and not properly divorced. He pleaded guilty and was given a fine as penalty
What is the legal definition of Bigamy?The legal definition of Bigamy is when a person who is legally married gets married to another person.
LegislationThe section that covers this offence is section 64 of the Crimes Act 1958.
Elements of the offenceThe prosecution must prove the following elements beyond reasonable doubt for an accused to be found guilty of Bigamy:
Element 1: The accused was married to A; and
The prosecution must prove that the accused was married to person A.
Element 2: The accused went through the form or ceremony of marriage with any other person (B) during the life of A.
The prosecution must also prove that the accused went through a marriage with another person B during A’s lifetime.
This element will not be satisfied if person A has been continually absent from the accused for seven years and the accused does not know person A to be living during that time, if the accused and person A have divorced or if the accused and person A’s marriage as been declared void by sentence of any court of competent jurisdiction.
“Was the previous marriage lawful?”
- The previous husband or wife has passed away.
- The first marriage was not legally binding.
Questions that are asked in cases like this:
- How can they prove there was a legally binding previous marriage?
The maximum penalty for Bigamy (s64 of the Crimes Act 1958) is 5 years imprisonment.
What can you be sentenced to for Bigamy?Only the most serious Bigamy offences will mean a period of gaol.
Now that property rights do not depend so much simply on being married the Courts do not usually put people in gaol for bigamy.