Have you been charged with bigamy?
A person who is married and who marries another person during the life of the former husband or wife (whether the second marriage takes place in Victoria or elsewhere) is guilty of bigamy.
There are several things to consider if you have been charged with this offence. Can the prosecution make out their case? Did you marry a person when you were already married to someone else? Was your first spouse still alive? Did you believe the first marriage was over through divorce or annulment?
The defence of mistake of fact may be available in certain circumstances, including where the defendant has a mistaken belief that their spouse was dead when remarrying or that the initial marriage was invalid. You will need to engage a specialist criminal lawyer to help you with your defence.
This article examines the specifics of the criminal offence of bigamy, explaining the meaning of bigamy, the legal implications, how it differs from polygamy, and some interesting cases that consider bigamy.
Bigamy meaning
Bigamy is the act of entering into a marriage with one person while still legally married to another. Historically treated as a capital crime, bigamy in contemporary Australia, defined under section 94 of the Marriage Act 1961 (Cth), attracts a maximum penalty of five years’ imprisonment, positioning it as an indictable offence triable summarily. In Victoria, bigamy is also criminalised at the state level.
Before the Australian Parliament introduced the Marriage Act in 1961, bigamy was legislated by the states and territories. The Marriage Act 1961 established a nationally uniform system of marriage law, including a uniform regulatory approach to bigamy. Section 94 of the Marriage Act came into effect on 1 September 1963. This led several jurisdictions, including Western Australia, Tasmania, and the Australian Capital Territory, to repeal their respective bigamy offences. However, other jurisdictions such as New South Wales, Victoria, Queensland, and South Australia have retained their bigamy laws.
Bigamy charges
Bigamy is an indictable criminal offence at a State and Commonwealth level.
The offence of bigamy, established under section 94 of the Marriage Act 1961 (Cth) (the Marriage Act), states:
(1) A person who is married shall not go through a form or ceremony of marriage with any person…
(4) A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married.
In Victoria, bigamy is defined in section 64 of the Crimes Act 1958 (Vic), which states
- Whosoever being married goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum).
- Nothing in this section contained shall extend to any person going through the form or ceremony of marriage as aforesaid whose husband or wife has been continually absent from such person for the space of seven years then last past and has not been known by such person to be living within that time; or shall extend to any person who at the time of her or his going through such form or ceremony of marriage has been divorced from the bond of the marriage; or to any person whose marriage at such time has been declared void by the sentence of any court of competent jurisdiction.
Why is bigamy illegal in Australia?
Bigamy, the act of marrying someone while already being legally married to another, has been illegal in many societies for centuries, originally emerging within ecclesiastical courts before being formally recognised as an offence under English statute with the Bigamy Act of 1603. This prohibition has been maintained in modern legal systems, including Australia, primarily to uphold the societal values of marital fidelity and legal clarity in family relationships. The offence is considered serious as it undermines the trust and the contractual nature of marriage, which is intended to be a mutually exclusive arrangement between two people.
While bigamy has a long history, critiques suggest that the historical rationale supporting the criminalisation of bigamy is outdated and already addressed by other laws, advocating for the decriminalisation of bigamy (“Why the Bigamy Offence Should be Repealed” (2019) 41 Sydney Law Review 359). However, despite its rarity, bigamy remains relevant in Australian law, particularly within the family court system, where it sometimes leads to judicial referrals for criminal prosecution.
In a significant ruling by the Family Court of Australia, in Hiu & Ling [2010] FamCA 743, the marriage between Ms Hiu and Mr Ling was declared null and void due to Mr Ling’s prior undissolved marriage. The case was also referred to the authorities for consideration of a bigamy charge against Mr Ling. The ruling serves as a reminder of the legal implications of bigamy under Australian law despite its rarity.
The considerations and relevant authorities relating to whether to refer documents to relevant prosecuting authorities were summarised by Mushin J in Hiu & Ling at [18] – [22]. The effect of these decisions is that while the court does not have a duty to refer papers to the appropriate authorities in every case, the question of whether it should exercise its discretion to do so is to be decided on the facts of the matter. Regard should also be had to the seriousness of the potential offence (Molina & Sanchez [2021] FamCA 84).
The Marriage Act and the Family Law Act
The bigamy offence is part of a broader legal framework designed to prevent such marriages. For instance, section 23B(1)(a) of the Marriage Act declares subsequent concurrent marriages void. Prospective spouses must provide accurate details about their marital status to an authorised marriage celebrant before marriage, including a written notice and declaration affirming there is no legal impediment to the marriage, explicitly stating that neither party is married to another person. Under Section 104, providing false information in these documents is an offence punishable by up to six months imprisonment, and a celebrant who proceeds with marriage despite knowing of potential legal impediments or falsehoods also commits an offence.
While a bigamous marriage is legally void, this does not occur automatically at law. To dissolve the marriage, the parties involved must apply to the Family Court of Australia to seek a declaration that the marriage is a nullity. If the court is satisfied that the marriage was bigamous, the Family Court may refer the matter to other legal authorities for consideration of prosecution. Judges of the Family Court have referred nullity of marriage cases to authorities such as the Chief Justice of the Family Court, the Commonwealth Attorney-General, and the Commonwealth Director of Public Prosecutions. In Hiu v Ling, for example, Mushin J in the Family Court granted a decree of nullity in relation to a bigamous marriage and commented that it would be ‘contrary to my duty as a Judge of the Commonwealth if I were to decline to refer the papers’ for consideration for potential prosecution Hiu v Ling [31].
While the Marriage Act considers marriage as monogamous only, making second and subsequent marriages legally void under s 23B(1)(a), the Family Law Act recognises polygamous marriages and de facto relationships to enable parties to apply for divorce, split assets, and claim spousal maintenance when such relationships end (s 4AA(5)). It is also important to note that Family Law Act 1975 (Cth), treats children of void bigamous marriages in an manner that is identical to children of valid marriages (Family Law Act 1975 s 60E).
Bigamy cases in Australia
Given this framework around marriage, in situations where bigamy has occurred, the parties involved, including the celebrant, may have committed several offences under the Marriage Act. A case study reported in the Commonwealth Director of Public Prosecutions 2009–2010 Annual Report provides an interesting case example.
In this case, after separating and finalising a property settlement with his wife, the defendant approached a marriage celebrant to marry another woman. He falsely claimed he was divorced, providing the celebrant with a forged Certificate of Divorce under the seal of the Family Court bearing the Registrar’s signature. The celebrant accepted the certificate as genuine, and the marriage ceremony was performed.
The bigamous marriage was discovered when the defendant’s legal wife saw a wedding photograph in the local newspaper. The defendant was charged with:
bigamy pursuant to section 94(1) of the Marriage Act 1961;
giving a defective notice to an authorised celebrant pursuant to section 104(1) of the Marriage Act 1961;
giving false or misleading information pursuant to section 137.1(1) of the Criminal Code;
forgery pursuant to section 144.1(1) of the Criminal Code; and
using a forged document pursuant to section 145.1(1) of the Criminal Code.
The defendant entered a plea of guilty to all counts. The Hobart Court of Petty Sessions sentenced the defendant to 6 months imprisonment to be released immediately on a recognisance of $3000 to be of good behaviour for 5 years. He was fined a total of $2,300. The defendant pleaded guilty to all charges. The Hobart Court of Petty Sessions sentenced him to six months of imprisonment, which was suspended upon his immediate release, conditioned on a $3,000 recognisance to maintain good behaviour for five years. Additionally, he was fined $2,300. This case serves as a reminder of the legal consequences of falsifying marital status and the seriousness with which the Australian legal system treats matrimonial fraud and document forgery.
Family law case referred for prosecution
In a significant ruling by the Family Court of Australia, Judge Mushin granted a Decree of Nullity of Marriage to Ms Hiu in respect of her marriage to Mr Ling. The case, Hiu & Ling [2010] FamCA 743, revolved around the issue of bigamy, as Mr Ling was found to have already been married to Ms Hiu at the time of his marriage. The judge also decided to refer the papers in this matter to the Chief Justice of the Court for referral to the relevant prosecuting authorities due to the strong evidence suggesting that Mr Ling had committed the serious crime of bigamy under Commonwealth law.
The case began when Ms Hiu, originally from China, married Mr Ling in Melbourne in February 2010. A month later, a friend visiting from China informed Ms Hiu that Mr Ling had married a former girlfriend in Hong Kong in December 2009. Mr Ling admitted to this marriage, stating that it was arranged by his and his former girlfriend’s parents. Ms Hiu found wedding photos of Mr Ling and his former girlfriend on Facebook, and Mr Ling did not dispute any of these facts, providing a Certificate of Marriage from his Hong Kong wedding as evidence.
Ms Hiu applied for a Decree of Nullity of Marriage on the grounds of bigamy, as Mr Ling was already married at the time of their marriage. Mr Ling admitted to the facts relied upon by Ms Hiu in her application. Ms Hiu, through her counsel ,Ms Vohra, relied on her application and affidavit of evidence in chief. She presented evidence of Mr Ling’s prior marriage, including the revelation by a friend and the wedding photos found on Facebook. Mr Ling, represented by Dr Ingleby, admitted to the facts presented by Ms Hiu and provided a Certificate of Marriage from his Hong Kong wedding as evidence.
Judge Mushin found that at the time of Mr Ling’s marriage to Ms Hiu in February 2010, he was already married to another woman in a marriage in Hong Kong in December 2009. This prior marriage had not been dissolved. As such, the judge granted a Decree of Nullity of Marriage to Ms Hiu in respect of her marriage to Mr Ling.
In his reasoning, Judge Mushin noted the strong evidence suggesting that Mr Ling had committed the serious crime of bigamy under Commonwealth law, which is punishable by up to five years imprisonment. As a result, the judge decided to refer the papers in this matter to the Chief Justice of the Court for referral to the relevant prosecuting authorities.
The result of the case was a Decree of Nullity of Marriage granted to Ms Hiu, effectively nullifying her marriage to Mr Ling. The case also resulted in the potential prosecution of Mr Ling for the crime of bigamy, highlighting the serious legal consequences of such actions.
Bigamy vs polygamy
Polygamy is a general term used to describe the practice of having multiple spouses at the same time and is often tied to cultural or religious practices. Bigamy, on the other hand, specifically refers to the act of entering into a marriage with a person while already legally married to another person without legally dissolving the initial marriage. Bigamy involves deceiving someone into entering a marriage while still being married to someone else. It can be considered a form of fraud, which can have serious consequences, including criminal charges and imprisonment.
Defences to bigamy
Several defences may be available to a prosecution for bigamy under s 94 of the Marriage Act. Section 94(1A) of the Marriage Act specifies that ‘strict liability applies to the physical element of circumstance, that the person was married when the form or ceremony took place’. Strict liability means that there is no need to prove fault for the physical element of the offence, and it allows for a ‘mistake of fact’ defence as specified in section 9.2 of the Criminal Code (Cth).
It is also a mistake of fact defence under s 94(1) of the Criminal Code (Cth) if the defendant can prove that at the time of the offence, they believed their spouse was dead and that the spouse was continually absent, such as to provide reasonable grounds for presuming that they were dead. A person’s absence for a period of 7 years immediately preceding the date of the alleged offence is sufficient to satisfy this presumption, as long as the defendant has ‘no reason to believe’ that their spouse was alive during this time (s 94(3)).
How to report bigamy
If you suspect someone of committing bigamy in Victoria and you wish to initiate a report, gather any evidence you may have, such as marriage certificates, photographs, or other documents that demonstrate the individual is engaged in more than one marriage simultaneously. Then, contact the local police department to provide this evidence and formally report your concerns. The police will investigate the matter, which may lead to prosecution if there is sufficient evidence.
Penalty for bigamy
Bigamy under section 94 of the Marriage Act 1961 (Cth) (‘the Marriage Act‘) carries a maximum penalty of imprisonment for five years. This penalty means that although bigamy is an indictable offence, it is within the less serious category of indictable offences that can be dealt with summarily if agreed by both the prosecutor and the defendant. If bigamy is heard and determined summarily, the maximum sentence of imprisonment that can be imposed is 12 months (Crimes Act 1914 (Cth) s 4J(3)(a)).
What to do if charged with bigamy
If you have been charged with bigamy, contact a bigamy criminal defence lawyer who specialises in criminal law as soon as possible. Your lawyer will help you understand the charges against you, explore possible defences, and discuss potential outcomes. It’s also important to gather any evidence that may support your case, such as divorce documents or communications regarding your marital status. Navigating the legal system effectively requires professional guidance to protect your rights and achieve the best possible outcome in court. If you have been charged with bigamy, make an appointment with one of our experienced lawyers today.
Victorian legislation
Section 64 Bigamy of the Crimes Act 1958
Whosoever being married goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife shall be guilty of an indictable offence and shall be liable to level 6 imprisonment (5 years maximum). Nothing in this section contained shall extend to any person going through the form or ceremony of marriage as aforesaid whose husband or wife has been continually absent from such person for the space of seven years then last past and has not been known by such person to be living within that time; or shall extend to any person who at the time of her or his going through such form or ceremony of marriage has been divorced from the bond of the marriage; or to any person whose marriage at such time has been declared void by the sentence of any court of competent jurisdiction.
Commonwealth legislation
Section 94 of the Marriage Act 1961
(1) A person who is married shall not go through a form or ceremony of marriage with any person.
Penalty: Imprisonment for 5 years.
(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form or ceremony took place.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that:
(a) at the time of the alleged offence, the defendant believed that his or her spouse was dead; and
(b) 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.
(3) For the purposes of subsection (2), proof by a defendant that the defendant’s spouse had been continually absent from the defendant for the period of 7 years immediately preceding the date of the alleged offence and that, at the time of the alleged offence, the defendant had no reason to believe that the defendant’s spouse had been alive at any time within that period is sufficient proof of the matters referred to in paragraph (2)(b).
(3A) To avoid doubt, section 9.2 of the Criminal Code (mistake of fact) does not apply in relation to the matters mentioned in subsections (2) and (3).
(4) A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married.
Penalty: Imprisonment for 5 years.
(5) It is not an offence against this section for a person to go through a form or ceremony of marriage with that person’s own spouse.
(6) In a prosecution for an offence against this section, the spouse of the accused person is a competent and compellable witness for either the prosecution or the defence.
(7) In a prosecution for an offence against this section, the fact that, at the time of the alleged offence, a person was married shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage.
(7A) In a prosecution for an offence against this section, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have taken place whether in Australia or elsewhere.
(8) This section operates to the exclusion of any law of a State or Territory making it an offence:
(a) for a person who is married to go through a form or ceremony of marriage with any person; or
(b) for a person to go through a form or ceremony of marriage with a person who is married;
but does not affect the operation of such a law in relation to acts and things done before the commencement of this Act.
