There’s no law against someone obtaining a divorce and marrying another person, however, there is a law against marrying one person, and then marrying someone else while the former union is still legally recognised – an act known as bigamy.
Bigamy is an offence in all States and Territories, and using s 360(1) of the Criminal Code 1899 (QLD) (the QLD Act) as an example, a person is guilty of a crime if:
- married, goes through the form of marriage with any other person during the life of his or her wife or husband; or
- a person who goes through the form of marriage with any person whom he or she knows to be married.
Are there any defences to bigamy?
Both the common law and statute provide for a defence of bigamy if there has been an absence of seven years. So looking to the QLD Act again, s 360(2) makes it a defence against a charge of bigamy if a person proves “...that at the time of committing the alleged offence the wife or husband of the person already married had been continually absent from him or her for the space of 7 years then last past, unless it is shown that the accused person knew that such wife or husband was living within that time.”
Another defence is if a person held an honest and reasonable belief that the former marriage is invalid (per Thomas v The King (1937) 59 CLR 279).
The effect of common law divorce
Finkelstein J in James v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 493 (FCA) said (at 503 ):
“According to the common law (which followed canon law) a marriage could be dissolved either by death or divorce. There were two kinds of divorce, one total and the other partial. A divorce a vinculo matrimonii was one which terminated the marriage relation. It was available in the case of incapacity such as would render the marriage contract void. The types of incapacity included: already being married; being under age; in the case of a minor; not having the consent of his or her parents or guardians; lack of mental capacity. A divorce a mensa et thoro was one which suspended the marriage relation and modified the duties and obligations between husband and wife. A divorce a mensa et thoro operated as a decree for the perpetual separation of the parties, affecting their personal rights and legal capacities in the same way as a decree of divorce a vinculo matrimonii, except that neither party could marry during the life of the other.”
What are the penalties for bigamy?
Although an offence of bigamy can land a person in jail. Perhaps the ultimate punishment as articulated by David Ross QC in Ross On Crime Fifth Edition is arguably the direst punishment of all: “Two mothers-in-law.”