Legal Status of Bigamy

Bigamy

Bigamy"Two rites making a wrong." – Bob Hope

Bigamy

Bigamythe act of entering into a marriage with one

person while still legally married to another

– Merriam Webster

Marriage in Canada

Marriage in Canada

Federal Law

Determines who can marry:• Age required to marry• Specifies relatives that

cannot marry

Provincial Law

Governs marriage ceremonies

Under Canadian law,

both the person already married and the second “spouse” are guilty of bigamy

Punishment: Imprisonment for up to 5 years

Polygamy is not the same


Polygamy consists in the maintaining of conjugal relations by more than two persons.


Polygamy consists in the maintaining of conjugal relations by more than two persons. When the result of such relations is to form a single matrimonial or family entity


Polygamy consists in the maintaining of conjugal relations by more than two persons. When the result of such relations is to form a single matrimonial or family entity with the spouses, this is regarded as polygamous marriage.

-1985 Canadian Law Reform Commission

The Criminal Code of Canada, Offenses against Conjugal Rights


290. 1) Every one commits bigamy who

(a) in Canada,

(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or

(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.


290. 1) Every one commits bigamy who

(a) in Canada,

(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or

(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.

Matters of defence

(2) No person commits bigamy by going through a form of marriage if

(a) that person in good faith and on reasonable grounds believes that his spouse is dead;

(b) the spouse of that person has been continuously absent from him for seven years immediately preceding the time when he goes through the form of marriage, unless he knew

that his spouse was alive at any time during those seven years;

(c) that person has been divorced from the bond of the first marriage; or

(d) the former marriage has been declared void by a court of competent jurisdiction.

Incompetency no defence

(3) Where a person is alleged to have committed bigamy, it is not a defence that the parties would, if unmarried, have been incompetent to contract marriage under the law of the place where the offence is alleged to have been committed.

Validity presumed

(4) Every marriage or form of marriage shall, for the purpose of this section, be deemed to be valid unless the accused establishes that it was invalid.

Act or omission by accused

(5) No act or omission on the part of an accused who is charged with bigamy invalidates a marriage or form of marriage that is otherwise valid.

R.S., c. C-34, s. 254.

Why commit bigamy?

Why commit bigamy?Divorce Historically• Required intervention of church, community and state

• Required an Act of Parliament

Why commit bigamy?Divorce Historically• Required intervention of church, community and state

• Required an Act of Parliament

Divorce Today• Easy to obtain

• “no fault”

Other reasons:• Immigration fraud;• Financial fraud;• Sociopathy

• Or any combination of the above

Why criminalize bigamy?

Why criminalize bigamy?We don’t prosecute:• Abandonment of a spouse

• Adulterous relationships (affairs)

• Subsequent marriages

• Common-law relationships





• Thusly, bigamy is not simply viewed as a moral issue…





• Thusly, bigamy is not simply viewed as a moral issue…

What is the difference?

Bigamy is a fraud against the state


CRIMINAL CODE OF CANADA, PART VIIIDefinitions

214. In this Part, “form of marriage”




“form of marriage” includes a ceremony of marriage that is recognized as valid




“form of marriage” includes a ceremony of marriage that is recognized as valid

(a) by the law of the place where it was celebrated, or

(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated;

Bigamy is an erosion of family values


Canadian Bill of Rights (S.C. 1960, c44)An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms


Canadian Bill of Rights (S.C. 1960, c44)An Act for the Recognition and Protection of Human Rights and Fundamental FreedomsPreamble

The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;


Canadian Bill of Rights (S.C. 1960, c44)An Act for the Recognition and Protection of Human Rights and Fundamental FreedomsPreamble

The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;

• Courts have cited the erosion of family values as the major reason for continuing to keep bigamy within the Criminal Code.

Bigamy is defiance of the law


This is why the prohibition of bigamy seems justified,


This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage,


This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself.


This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects:


This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects: this is what makes it a real threat to the institution.


This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects: this is what makes it a real threat to the institution.

-Bigamy, Working Paper 42 (Ottawa: Law Reform Commission of Canada, 1985) at 11

Bigamy is breach of contract

Bigamy is breach of contract

Criminal Code of Canada defines marriage under

Offenses Against the Person and Reputation

Bigamy is identity theft

Bigamy is identity theftAllowing a person to have an additional marriage both state-licenced and state-sanctioned leaves the legal status of the first spouse in jeopardy.

Bigamy is identity theft

Jeopardize family financial security and claims to:

• Life Insurance• Inheritance Claims• Family property• Employment benefits, Government benefits• creates problems with income tax, credit…

Allowing a person to have an additional marriage both state-licenced and state-sanctioned leaves the legal status of the first spouse in jeopardy.

These are non-specific damages

These are non-specific damages

which is why we often view this as a “victimless” crime.

Bigamy violates International treaties

Bigamy violates International treaties

including Canada's Obligations under International Human Rights Law

Does anyone commit bigamy these days?

Facebook: 7 December, 2013

5 December, 2013• Rene: In a few min your life will for ever change!!

I love you Amy and am so happy for you! Glad you found the man you deserve!! David Dease take care of my friend!! Congrats Guys

• Amy: Ok. I'm bawling so no more. Lol. Gotta get dressed so I can get all married up.

• Evangelist: I'm so happy for you Mrs. Dease. Now just waiting on pictures.

4 December, 2013

4 December, 201319 June, 1998

Bigamy laws

Bigamy lawsMost western countries do not recognize polygamous marriages, and consider bigamy a crime. – Wikipedia

Through criminal prohibitions of either polygamy or bigamy, the practice is prohibited throughout the Americas, Europe, Australia and Oceania, and large parts of Asia, including China and Japan.

Bigamy lawsAustralia: Illegal. Up to 10 years imprisonment.[7]

Belgium: Illegal. 5 to 10 years imprisonment.[8]

Brazil: Illegal. 2 to 6 years imprisonment. [9]

Canada: Illegal under the Criminal Code, sect 293.[10]

China: Illegal (but tolerated for some minorities, such as Tibetans, in some rural areas in the South West) .Colombia Illegal with exceptions (such as religion). Although bigamy no longer exists as a lone figure in the Colombian judicial code marrying someone new without dissolving an earlier marriage may yield to other felonies such as civil status forgery or suppression of information.[11]

Egypt: Legal if first wife consentsEritrea: Illegal. Up to 5 years imprisonment.All the 27 countries of the European Union (see special note for the United Kingdom): Illegal.Iceland: Illegal according to the Icelandic Act on Marriage No. 31/1993, Art. 11.[12]

Ghana: Illegal. Up to six months imprisonment.Republic of Ireland: Bigamy is a statutory offence. It is committed by a person who, being married to another person, goes through a ceremony capable of producing a valid marriage with a third person. The offence is created by section 57 of the Offences against the Person Act 1861.[13] This section replaces section 26 of the Act 10 Geo. 4 c. 34 for the Republic of Ireland.[14]

Israel: Illegal. Up to 5 years imprisonment.[15]

Iran: Legal with consent of first wife, rarely practiced.India: Legal only for Muslims. Up to 10 years of imprisonment for others.Libya: Legal with conditions.Malaysia: Permitted for Muslims; required to obtain judicial consent, show

financial capability, and several strict conditions. Some variation in law between states (family law relating to non-Muslims is under federal jurisdiction).[16]

Maldives: Permitted for anyone.Malta: Illegal under the Marriage Act of 1975, section 6.Netherlands: Illegal. Up to 6 years imprisonment. If the new partner is aware of the bigamy he or she can be imprisoned for a maximum of 4 years.New Zealand: Illegal under section 205 of the Crimes Act 1961. Up to 7 years imprisonment, or up to 2 years imprisonment if the judge is satisfied the second spouse was aware their marriage would be void.Morocco: Permitted for Muslims, restrictions apply.Pakistan: Polygamy in Pakistan is permitted with restrictions.Saudi Arabia: Bigamy or Polygamy is legal.South Africa: Legal under the Recognition of Customary Marriages Act, 1998 for customary marriages. Under civil law marriages (regulated by the Marriage Act), any marriage in addition to an already existing one is invalid (but not criminalized).Somalia: Polygamy is legal at marriage courts; long standing tradition.Thailand: Polygamy in Thailand Tunisia: Illegal. Up to 5 years imprisonmentTurkey: Illegal. Up to 5 years imprisonmentUnited Kingdom: Illegal, imprisonment for a term not exceeding seven yearsUnited States: Illegal in every state. Penalty up to 5 years. (but see Polygamy in North America)Uzbekistan: Illegal.

http://en.wikipedia.org/wiki/Australia

http://en.wikipedia.org/wiki/Bigamy#cite_note-7

http://en.wikipedia.org/wiki/Belgium


http://en.wikipedia.org/wiki/Brazil


http://en.wikipedia.org/wiki/Canada

http://en.wikipedia.org/wiki/Criminal_Code_of_Canada


http://en.wikipedia.org/wiki/China

http://en.wikipedia.org/wiki/Colombia

http://en.wikipedia.org/wiki/Identity_document_forgery


http://en.wikipedia.org/wiki/Polygamy_in_Egypt

http://en.wikipedia.org/wiki/Polygamy_in_Eritrea

http://en.wikipedia.org/wiki/European_Union

http://en.wikipedia.org/wiki/United_Kingdom

http://en.wikipedia.org/wiki/Iceland


http://en.wikipedia.org/wiki/Ghana

http://en.wikipedia.org/wiki/Republic_of_Ireland

http://en.wikipedia.org/wiki/Statutory

http://en.wikipedia.org/wiki/Offences_against_the_Person_Act_1861



http://en.wikipedia.org/wiki/Israel


http://en.wikipedia.org/wiki/Iran

http://en.wikipedia.org/wiki/India

http://en.wikipedia.org/wiki/Polygamy_in_Libya

http://en.wikipedia.org/wiki/Malaysia


http://en.wikipedia.org/wiki/Maldives

http://en.wikipedia.org/wiki/Malta

http://en.wikipedia.org/wiki/Netherlands

http://en.wikipedia.org/wiki/New_Zealand

http://en.wikipedia.org/wiki/Crimes_Act_1961

http://en.wikipedia.org/wiki/Polygamy_in_Morocco

http://en.wikipedia.org/wiki/Pakistan

http://en.wikipedia.org/wiki/Polygamy_in_Pakistan

http://en.wikipedia.org/wiki/Saudi_Arabia

http://en.wikipedia.org/wiki/Polygamy

http://en.wikipedia.org/wiki/South_Africa

http://en.wikipedia.org/wiki/Recognition_of_Customary_Marriages_Act,_1998

http://en.wikipedia.org/wiki/Marriage_Act,_1961_(South_Africa)

http://en.wikipedia.org/wiki/Somalia

http://en.wikipedia.org/wiki/Polygamy

http://en.wikipedia.org/wiki/Thailand

http://en.wikipedia.org/wiki/Polygamy_in_Thailand

http://en.wikipedia.org/wiki/Tunisia

http://en.wikipedia.org/wiki/Turkey

http://en.wikipedia.org/wiki/United_Kingdom

http://en.wikipedia.org/wiki/United_States

http://en.wikipedia.org/wiki/Polygamy_in_North_America

http://en.wikipedia.org/wiki/Uzbekistan

Penalty by Jurisdiction


Canada:Criminal Code of CanadaSection 290


Canada:Criminal Code of CanadaSection 290 Offenses Against Conjugal Rights



Indictable offence

Up to 5 years prison




Indictable offence




Nevada:Nevada Revised StatutesNRS 201.160


Indictable offence





Crimes Against Public Decency and Good Morals


Indictable offence


Category D Felony

Minimum 1 - 4 years prison, plus up to $5,000 fine ($20,000.00 possible if circumstances merit)






Indictable offence


Category D Felony






Missouri:Missouri Revised StatutesSection 568.010


Indictable offence


Category D Felony







Offenses Against the Family


Indictable offence


Category D Felony


Class A misdemeanor

Up to 1 year in jail and / or up to $1000 fines






Offenses Against the Family

Canadian precedents

R. v. Moore, [2001] O.J. No. 4513

And it's the deception factor that would cause us to characterize bigamy as an emotional crime in modern times…. if one does not believe in marriage it's very easy not to get married and simply to live together. If you don't agree with marriage, you have other options and you can make your own arrangement with a partner or several partners. Infidelity is also an arrangement, that has existed for centuries, sometimes involving deception to a lesser degree than bigamy.Once the decision to marry is taken and both partners participate in a religious or civil marriage ceremony, my view of it is that this creates and formalizes an expectation that the traditional view on the subject will be observed and respected. And if you do marry, it's implicit that you accept that value system. It's a trust.When that trust is violated, that's betrayal. And the betrayed parties look to the community that sanctioned their marriage bond for the protection of their expectations. And the community looks to the courts for that sanction. . . .Taking all of the foregoing into account, it is my view of sentencing in bigamy cases, that in spite of changing values in society, and in spite of the rarity of the offence, that the vast majority of Canadians still wish to get married and still get married. The vast majority of Canadians want to have children and want to enjoy family life. Without family, not only would our social structure disintegrate, so would much of our economy that relies on procreation and the family for its sustenance.While there is somewhat more skepticism compared to other parts of the [sic ] Canada about traditional marriage in the urban environment of Toronto, which includes the geographical area serviced by this courthouse, marriage and the family are still managing to thrive, and most Torontonians are married, and most married Torontonians have families. And all of these people look to the courts to protect and preserve the cornerstone of our way of life. . . .I think that Ms. Denomme's submissions on behalf of the Crown are quite correct in that our society does view the criminal offence of bigamy with moral repugnance because it does strike at the heart of our way of life. Family life is where we learn our values, including respect for the law, which is part of the purpose of sentencing found in s. 718 of the Criminal Code.So any sentencing decision does have to protect the home and the family that is the foundation of our way of life and of respect for the law

R. v. LeBlanc, [1999] O.J. No. 4642

“…bigamy - which is itself a fraud on the public because it is holding out to society that one is free to marry when one is not...”

R. v. Sauve, [1997] A.J. No. 525

fine in the amount of $1,000.00, …[and]…. a Probation Order for 12 months

Judge quoted:• Judge Borins in Regina v. Stanley Walter Friar (supra)

commented on changing social values. He states in his decision:• "In determining what is the appropriate penalty for this offence and this

offender in the 1980s, I must take into account the changing views of society. I agree, as well, with Mr. Walker's submissions that the offence is currently so rare that it is unnecessary for the courts to impose a sentence such as would deter others from becoming bigamists. All that I need to do, in my view, is to reflect the views of society who view the offence with repugnance."

mens rea

mens rea

mens rea is Latin for "guilty mind"

mens rea

mens rea is Latin for "guilty mind“ / no one accidently gets married

The “Tolson” Test [1889] 23 Q.B.D.

Denial of “mens rea:”

• Tolson married after her husband had been gone 5 years. She believed he was lost at sea. It was later discovered that he had left her and was not dead. • Found not guilty by reason that the marriage “in good

faith and on reasonable grounds.”

The “Tolson” Test [1889] 23 Q.B.D.

Denial of “mens rea:”

• Tolson married after her husband had been gone 5 years. She believed he was lost at sea. It was later discovered that he had left her and was not dead. • Found not guilty by reason that the marriage “in good faith and on

reasonable grounds.”

This test has been overturned by viewing that the mistake does not need to be reasonable, just “honest belief,” now making Tolson bad law.: “intention must not be confused with mens rea” -R. v. King, [1962] S.C.R. 746, et al

R. v. Swearengen, [2003] O.J. No. 3978

Decision quoted Mewett and Manning on Criminal Law, 3rd ed., Butterworths, page 392:

• “…the correct question to ask is whether the accused has the requisite mens rea, not whether his mistake is one of fact or law.

• Suppose, for example, that a person thinks his first marriage is, legally, void, and he goes through a second marriage ceremony with another person. In reality, the first marriage is valid and he is charge with bigamy. He is mistaken and it is easy merely to say that since he is mistaken as to the legal validity if the first marriage that mistake is one of law and therefore he has no defence.

• But that is not the issue. The issue is whether he had the mens rea to commit bigamy. i.e., being married, go through another marriage ceremony. If he does not, it does not matter why he does not and whether it is because he is mistaken as to a fact (e.g., believing his first spouse to be dead) or as to law (e.g., believing his first marriage to be invalid), he still does not have the mens rea."

Why it is not prosecuted more often?

Why it is not prosecuted more often?

• Considered a victimless crime

• Traditional family unit no longer status quo

• Human Rights challenges under Canada’s Charter of Rights as to whether the prohibition of bigamy and polygamy are violations of human rights

Is Canada’s Bigamy Law Constitutional?


The Oakes test:

Can this Charter infringement can be justified under s. 1. of the Charter of Rights?


Does the law:• violate freedom of association? • violate freedom of religion; • violates right to life, liberty and security of the person Is the law:• not in accord with the principles of fundamental justice• unreasonably limit freedom• demonstrably justified in a free and democratic society.


Canadian Polyamory Advocacy Association

Advocates the practice of having more than one romantic or sexual relationship at a time


Canadian Polyamory Advocacy Association:

Is the Bigamy Law (SECTION 290 OF THE CRIMINAL CODE) also Unconstitutional?


Canadian Polyamory Advocacy Association:

Is the Bigamy Law (SECTION 290 OF THE CRIMINAL CODE) also Unconstitutional?

• We have not fully analyzed section 290.• We think it’s constitutionally acceptable, and appropriate,

to prohibit fraud between partners, including secretly taking on more conjugal commitments.

© 2014 Canadian Polyamory Advocacy Association

http://laws.justice.gc.ca/eng/C-46/page-6.html#anchorbo-ga:l_VIII-gb:s_290

The punishment for bigamy

is having two mothers-in-law - unknown