CHAPTER 3–THE CRIMINAL LAW–BIGAMY AND RELATED OFFENCES

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The roots of bigamy laws extend deep into the past, and are as

much entwined with established religious organisations as they

are with social or democratic concerns. As a nation that professed

Christianity until relatively recently, English law has felt the impact

of the Bible and various theologians in a variety of ways. Polygamy

is recorded in the Bible as a practice of the patriarchs and

Kings, and the text speaks of the relationship between God and

Israel, and later between Christ and the Church, in polygamous

terms. Polygamy itself escapes any form of scriptural condemnation

and appears instead to attract support. After the Bible was

completed, as one church or another became established as rival

sources of authority and law, and as the Roman Church itself married

the Empire, condemnations of polygamous behaviour began

to become more common.

The Lex Antonia De Civivate of 212 AD required monogamy

for all citizens of the Roman Empire except Jews. According to

Kofon, in 258 AD Valerian and Gallienus made a law forbidding

second marriages when the first partners were still alive, and in

285 AD Diocletian and Maximian abolished polygamy in the

whole of the Roman Empire without exception. As the Jews, who

at that point still practised polygamy, largely ignored this, in 393 AD

Theodosius issued another law in an attempt to make them change

their ways, apparently without success, as Jewish groups were still

practicing polygamy within the Empire into the 11th Century.

24 SAMUEL CHAPMAN

Part of the reason for this lack of success may be the contribution

of the Emperor Valentinian who, according to the Roman

writer Socrates Scholasticus, took a second wife and decreed a law

legitimising the practice around 400 AD.

Milton’s History of Britain records a number of early British

polygamous kings and, in 597 AD, Augustine, a missionary to

Britain, enquired of Pope Gregory I as to what he should do about

the polygamous Britons. He was told that perhaps toleration would

be better than condemnation. Pope Gregory II gave similar advice

to Boniface in 726 about polygamous Germans, and in 757, according

to Hitchens, the Church Council of Compiegne allowed a

leprous spouse to permit their partner to marry again. (see Hitchens

R J, Multiple Marriage: A Study of Polygamy in the Light of the

Bible (1987) Maryland: Doulos Publishers)

In 1201 Pope Innocent III, in answering a practical question

from the Bishop of Tiberias, refused baptism to polygamists who

had converted, and later that century Thomas Aquinas saw

continued polygamy among such converts as continual sin which

prevented them from receiving the sacraments, although this was

tempered by his view that polygamy only breached secondary

precepts which did not apply always and everywhere.

However, the situation became far more varied and intriguing

with the onset of the Reformation, which was of particular relevance

to England as Henry VIII’s repeated failure to produce a male heir

gave him a particular interest in Christian teaching on marriage

that differed from the official Roman position. It appears that both

sides of the Reformation entertained positive attitudes to polygamy

and discussed them in relation to the King’s case in the late 1520’s.

On the Roman Catholic side, one of Henry’s envoys reported that

a “great theologian”, thought to be Cardinal Cajetan, had advised

Pope Clement VII that a dispensation for polygamy could resolve

the situation. On the Protestant side, both Melancthon and Martin

Luther advised that polygamy was permissible for the King, but

the latter wished to avoid a wider application of the principle to

prevent scandal. Cairncross views the reformers here as concerned

more with political considerations, preferring a polygamous King

to a divided kingdom, and not concerning themselves with what

would happen if polygamy were more widely practised.

The reformers had plenty of opportunity to consider the

lawfulness of polygamy as in 1526, Philip, the Landgrave of Hesse

sought their permission to enter a second marriage, and they advised

that it was not a good idea.

Meanwhile, a group of Anabaptists gained control of Munster

in 1534 and, under the leadership of John of Leyden, established

a government which treated polygamy as the ideal form of marriage.

The reaction of their neighbours was intense and extreme, for within

a year they had achieved what ecumenism so far has not, in uniting

Catholics with Lutherans, albeit only to invade the city, kill much

of its population and torture and execute its leadership.

In 1532 the Emperor Charles banned bigamy (again) within

the Empire, making it a capital offence, and in 1537 Pope Paul III

ruled (in Altitudo Divini Consilii) that converted polygamists who

could not remember which wife they had married first should

choose one, marry her in Church and send the rest away. This

appears to be another concession to practical considerations over

doctrine, as it seems strange that a man could forget which of his

wives he had married first.

The Reformers advice and these other developments were insufficient

to prevent Philip of Hesse raising the issue again in 1539,

this time securing the written permission of Luther, Melancthon

and Bucer, and the attendance of these last two at the resulting

wedding in 1540. But the Reformers insisted that the marriage

remain secret, and when it became public knowledge they backed

away from their previous support. The events that had taken place

since their advice to Henry had given them concern as to what

would happen if polygamy was extended beyond princes and was

practised by the general population. This lukewarm and evasive

stance caused Philip to show a similar attitude in his support for

the political advancement of Protestantism, which did not run

smoothly after this.

In 1563 the Council of Trent reclarified the Catholic position

by declaring anyone who held polygamy to be lawful to be anathema,

and in the same year a former Franciscan, Bernardo Ochino,

published a book in Zurich which argued for the moral legitimacy

of polygamy.

In 1567 Jan Willemsen established a polygamous community

in Westphalia which later ended when he was caught and burned

to death in 1580.

In 1571 Pope Pius V ruled (in Romani Pontificus) that converted

polygynous Indians should stay with the wife with whom they

were baptised in to the Church, irrespective of whether she was

the first, and in 1585 Pope Gregory XIII ruled (in Populis ac

nationibus) that converted slaves could remarry if their former

partners were no longer available

Bigamy has been a criminal offence in England and Wales

since 1604, when the first Parliament of James 1 took action to

restrain the “divers evil disposed persons” who were bigamously

marrying “to the greate dishonour of God and utter undoinge of

divers honest mens children and others”, by ensuring that

anyone found guilty would receive a sentence of death. This

was not a complete innovation, having previously been a matter

for the ecclesiastical courts, but now taken over by the criminal

courts.

It is clear however that the issue of polygamy had been aired

many times in the century preceding this enactment, and it is

therefore notable for two reasons. Firstly, that the law should represent

some degree of resolution of the question, with England

enshrining bigamy as a crime, and secondly that it actually avoided

the issues rather than addressing them. The law was a fudge which

portrayed the sort of behaviour that it was outlawing as that of

people who were wandering the country and forming unions which

secretly were bigamous, rather than the open polygamy which

had been taking place across Europe and which had been presented

as an option to Henry VIII. It is unsurprising then that

later courts would interpret it solely with reference to bigamy as a

type of crime of deception, and would claim that it simply does

not address the practice of polygamy.

Before we move on, there are two other matters of note with

regard to the timing of the Act of 1604. Firstly, it was an enactment

of James I, whose name has ever since been linked with the

King James Version, a translation of the Bible made in 1611 and

authorised to be read in Churches. Like any translation of the

Bible it finds it impossible to conceal the polygamy of the patriarchs,

but some of the polygamous references in the New Testament

are rendered with sufficient ambiguity to let the reader pass

on without noticing their polygamous content.

Secondly, it is clear that the Act of 1604, whatever its effect

against bigamy-by-deceit, did not cease the discussion about the

practice of polygamy which, if anything, intensified in England

during the 17th Century. The concept drew support from Sir Walter

Raleigh and Sir Thomas Browne in England as well as the jurists

Hugo Grotius and Samuel Pufendorf elsewhere. John Donne, one

of James 1st favourites, and two other poets, John Milton and

John Dryden, wrote favourably of polygamy and James I’s own

grandson, Charles Louis, Elector of the Rhenish Palitinate, married

a second wife without apparently divorcing the first, and at least

sponsored, and possibly wrote, a defence of polygamy himself.

In 1671, after the Restoration, Charles II was reputed to have

gone through a bigamous ceremony with one of his mistresses, the

then Duchess of Portsmouth, and Leo Miller has shown that in

1675 a Michael Mallet MP introduced a Bill in the House of

Commons to repeal the Act of 1604 (see his “John Milton among

the Polygamophiles” (1974) New York: Leowenthal Press). Furthermore,

Jonathan Swift was one of many to allege that William

Cowper, first Lord Chancellor of the United Kingdom, was a bigamist

and had written in defence of polygamy, and it is clear that

Bishop Burnet had also written such a work to keep open the way

for Charles II legitimately to provide a Protestant heir to the throne.

The Act of 1604 was eventually repealed, but only as one of a

number of consolidations and amendments in 1828, where the

offence itself was retained and reworded, the maximum sentence

being reduced to being “transported beyond the Seas for the Term

of Seven years”. In 1861, the familiar law of today was passed as a

further consolidation, repealing and restating the Act of 1828 but

this time reducing the maximum sentence to penal servitude of

not less than three years and not more than seven, which has since

become a maximum term of imprisonment of seven years.

Its essential elements are that it is committed by “whosoever,

being married, shall marry any other person during the life of the

former husband or wife, whether the second marriage shall have

taken place in England or Ireland or elsewhere,” subject to the

provisions that nothing in the section extends to second marriages

outside England or Ireland by “any other than a subject of Her

Majesty, or to any person marrying a second time whose husband

or wife shall have been continually absent from such person for the

space of seven years then last past, and shall not have been known

by such person to be living within that time,” or shall extend to

any person who, at the time of the second marriage, had the first

marriage divorced or declared void “by the sentence of any court of

competent jurisdiction”.

The drafting of the legislation has in many ways not significantly

changed since 1604, and this may in part be the reason

why there are a number of interpretative difficulties. As interpretation

of legislation is a key point of the Human Rights Act 1998

it is necessary to examine these.

The first is a simple point of the actus reus. It concerns “whosoever,

being married, shall marry any other person”, but in English

law it is not possible to marry another person if you are already

married, because the second marriage is void. It has been decided

by the courts that, at the opening of the section, the legislation

uses the term “married” in two different senses. The first refers to a

valid subsisting marriage, and the second refers to the act of going

through a marriage ceremony. (See R v King [1964] 1 QB 285, 48

Cr App Rep 17, CCA)

But what counts as a valid subsisting marriage? Obviously the

defences concerning a void marriage, or a divorce, count such

marriages out of the definition of “being married”, but the courts

have also held that a continuing potentially-polygamous marriage

is not a marriage for the purposes of this definition. In R v Sarwan

Singh [1962] 3 All ER 612, the West Bromwich Quarter Sessions

ruled that a man who had brought his wife from abroad and had

gone through a second ceremony with another woman was not

guilty of bigamy because his first marriage was potentiallypolygamous

and to “be married” meant you had to be married

monogamously. This caused distress to writers such as Morse in

his “Polygamists and the Crime of Bigamy”; (1976) 25 ICLQ 229;

J Andrews in his “A Licence for Bigamy?” [1963] Crim. L.R. 261;

and Polonsky, who thought it a bigamists’ charter in [1971] Crim.

L.R. 401, allowing men who were first married under a system

which allowed polygamy to “marry” in the English system as many

times as they liked with impunity. The decision was however largely

upheld in R v Sagoo [1975] QB 885, [1975] 2 All ER 926, CA

where the Court of Appeal held, on similar facts, that the reasoning

was correct but that it neglected to include that a potentiallypolygamous

marriage could, by change of law and domicile, become

monogamous, and therefore good as a first marriage from the point

of view of the bigamy legislation. This leaves open the possibility

that where a domicile had not changed, or where the law of the

originating country had not changed, or where the marriage was

in fact polygamous, that the marriage would not convert to being

monogamous and no bigamy charge could stand. And crucially, it

can make guilt dependent on the difficult question of whether the

defendant has changed his domicile, which is something he may

not know until the court tells him that he has.

It is also necessary to consider what counts as a marriage ceremony

for the second marriage. In R v Robinson [1938] 1 All ER

301, 26 Cr App Rep 129 a couple contracted a marriage in Scotland,

having been over the border for less than the 21 days needed

to make the marriage valid. The man pleaded that this, his second

marriage, was invalid and therefore that, as no valid marriage could

30 SAMUEL CHAPMAN

have resulted, he should be acquitted. However this did not impress

the Court of Appeal, who found that the offence consisted of

going through the ceremony of marriage, and not its validity, following

Denman CJ in R v Brawn (1843) 1 Car & Kir 144 who

said “It is the appearing to contract a second marriage, and the

going through the ceremony, which constitutes the crime of bigamy,

otherwise it could never exist in the ordinary cases; as a previous

marriage always renders null and void a marriage that is celebrated

afterward by either of the parties during the lifetime of the other.”

constitute a valid defence.

There are a number of cases on either side of this argument,

but perhaps the most revealing for the purposes of this study is

that of R v Allen (1872) L.R. 1 C.C.R. where Cockburn CJ, in

overruling cases where it had been held that invalid marriages did

not qualify as second marriages for bigamy, spoke of the legislation

in terms of the “mischief it is intended to prevent.” He went into

some detail saying that the court “cannot agree…that the purpose

of the statutes against bigamy was simply to make polygamous

marriages penal” as “Polygamy, in the sense of having two wives or

two husbands, at one and the same time, for the purpose of

cohabitation, is a thing altogether foreign to our ideas, and which

may be said to be practically unknown; while bigamy, in the

modern acceptation of the term, namely that of a second marriage

consequent on abandonment of the first while the latter still subsists,

is unfortunately of too frequent occurrence. It takes place, as we all

know, more frequently where one of the married parties has deserted

the other; sometimes where both have voluntarily separated. It is

always resorted to by one of the parties in fraud of the law;

sometimes by both, in order to give the colour and pretence of

marriage where the reality does not exist. Too often it is resorted to

for the purpose of villainous fraud. The ground on which such a

marriage is very properly made penal; is, that it involves an outrage

on public decency and morals, and creates a public scandal by the

prostitution of a solemn ceremony, which the law allows to be

applied only to a legitimate union, to a marriage at best but

colourable and fictitious, and which may be made, and too often

is made, the means of the most cruel and wicked deception.”

The judge later went on to say that as even otherwise invalid

marriages involved outrage, scandal and deception, they also were

covered by the statute.

But the practice of treating an invalid marriage as a marriage

because it is the ceremony that is important has caused confusion

for some judges. In R v Treanor (or McAvoy) [1939] 1 All ER 330,

160, LT 286, CCA, the Lord Chief Justice, delivering the verdict

of the Court of Criminal Appeal took “second marriage” as literally

as possible. Mr Treanor had gone through three marriages, the

first valid, the second after deserting the first wife for 12 years, and

the third after deserting his second (bigamous) wife for only 1

year. Treanor was convicted of bigamy only related to the last marriage,

and argued that he should have had the benefit of the defence

that he hadn’t seen his first wife in seven years and did not

know her to be alive. The court held that the statute allowed him

to rely on this defence for his second marriage, not his “second or

subsequent marriage”, and therefore upheld his conviction.

This appeared to confuse the second act of going through a

ceremony (marrying) with a valid first marriage (being married),

but in fact was treating literally the defence which is available “to

any person marrying a second time”, and ignoring the fact that

the bigamous marriage which is the subject of the indictment is

called “the second marriage” earlier in the section.

This was duly corrected in R v Taylor [1950] 2 KB 368, 34 Cr

App Rep 138 CCA where similar facts brought before the Court

of Criminal Appeal caused the court to give leave to appeal against

conviction even though such leave had not been sought. On similar

facts, Lord Goddard C. J. stated that from considering the Act of

1604, ‘It is clear from that section that what is aimed at there is

what I may call polygamy–not merely bigamy, a second marriage,

but any number of marriages, because the words are “shall marry

any person or persons”.’ This showed that the defence was intended

to be available no matter how many times the ceremony of marriage

had been gone through and helped to establish that in the Act of

1861 “second marriage” meant the same throughout the section,

and included subsequent marriages. Otherwise, once a man became

a bigamist, he could continue to marry without offending, because

his third marriage or fourth marriage would not be his “second

marriage”. For the court the “second marriage” was the second

marriage charged in the indictment. The Court did not mention

it, but it is clear that under the original law the case would be less

likely to arise. Given that a man found guilty of his first offence of

bigamy would have been executed, he would not tend to reoffend.

Another issue has been the geographical ambit of the offence.

It takes place when the second marriage is “in England or Ireland

or elsewhere”. In R v Earl Russell [1901] AC 446, HL the Earl

had obtained a divorce in Nevada which was not recognised in

English law, so when he remarried in America this led to a trial by

his peers in the House of Lords for bigamy. His counsel argued

that “elsewhere” meant elsewhere in Her Majesties dominions, as

some sections in the same 1861 act which were extraterritorial

explicitly said so, and did not simply use “elsewhere”, but the

House and the judges present did not believe there was an argument

here that the Attorney-General need answer, and with that

Earl Russell pleaded guilty and was sentenced to three months

hard labour for his troubles. This decision has been regretted by

Williams who points out that it put in danger many of the Queen’s

citizens who practiced polygamy lawfully in the colonies. This

absurdity could only be resolved by the production of the doctrine

in R v Sarwan Singh and R v Sagoo that a potentially or

actually polygamous marriage was not a good first marriage for an

indictment for bigamy.

Another point of interpretation suggests itself from the legislation

but has not come before the courts. The proviso that the

section does not extend to second marriages outside England or

Ireland “by any other than a subject of Her Majesty” may exclude

those marriages where a British subject marries a foreigner. This

would make it a crime to marry an Australian bigamously abroad,

but not a crime to so marry an American.

The final interpretative point is that regarding the mens rea, or

intent, required for the offence to be complete. In R v Tolson (1889)

23 QBD 168, CCR the Court decided that some form of mental

element was necessary to the crime and, notwithstanding that the

Act provided a defence after seven years absence, held that a bona

fide belief on reasonable grounds that her first husband had died,

gave the defendant a good defence even though she had remarried

within seven years of the supposed death. In R v Wheat and R v

Stocks [1921] 2 KB 119, [1921] All ER Rep 602 the Court of

Criminal Appeal held that a genuine but mistaken belief by the

accused that he had been divorced when he contracted the bigamous

marriage was no defence to bigamy, and distinguished the

case by relating the mental element to the act of marrying “any

other person during the life of the former husband or wife”. As

someone who mistakenly believed they were divorced was clearly

intending to “marry any other person during the life of the former

husband or wife” they still had the requisite mens rea, whereas

someone who genuinely believed their spouse to be dead did not.

This in turn was found unacceptable by the Court of Appeal

in R v Gould, [1968] 2 QB 65, 52 Cr App Rep 152, CA who

found that while the words of the Act were absolute, mens rea was

required and could not be supplied by an “innocent mind”. The

Court found that, in as much as the proviso applied to divorce it

was not an exception at all, for a divorced man is not married and

therefore cannot be bigamous, and so its only value must be to

shed light on the absolute terms of the Act. The Court in R v

Wheat had completely misconstrued R v Tolson, and had substituted

a belief in the death of the first spouse for what the legislation said

about a lack of knowledge that they were alive. “An honest

defendant may freely admit that he believed his former spouse to

be alive at the time of the second marriage as long as he did not

know her to be so at any time within the previous seven years.”

The Court followed R v Tolson and accepted that an honest and

reasonable belief in a fact affecting the matrimonial status of the

defendant which, if true, would make his second marriage lawful

and innocent could constitute a defence.

The significance of this decision is not only that it accepts the

necessity for mens rea in the offence of bigamy but that it re-affirms R

v Tolson in so doing, and there is much in the judgments in Tolson to

help define the mens rea that the court found to be required.

R v Tolson was a case about a mistaken belief in the death of

the first husband, and was referred to a full court of 14 judges of

the Court of Criminal Appeal, who found by a majority of 9 to 5

that mens rea was required but absent in this case. There are four

speeches for the majority. Wills, J said that the guilty intent must

be either to do a thing prohibited by the statute or to do something

prohibited by no statute but that no-one would hesitate to call

wrong, and the examples he gives are fornication and seduction.

He also states that the severity of the possible punishment means

that “such a fate seemed properly reserved for those who have

transgressed morally as well as unintentionally done something

prohibited by law.” Cave, J said that the Act of 1604 predated the

presumption of a man’s death if he had not been heard of for seven

years, and that a person could believe their spouse to be alive and

still take advantage of the proviso, and so the proviso did not provide

the only defence. Stephen, J said that “It could not be the object

of parliament to treat the marriage of widows as an act to be if

possible prevented as presumably immoral. The conduct of the

women convicted was not in the smallest degree immoral, it was

perfectly natural and legitimate” and that “the legislature did not

mean to hamper what is not only intended, but naturally and

reasonably supposed by the parties, to be a valid and honourable

marriage, with a liability to seven years’ penal servitude”. Hawkins,

J said that, as a felony, it had to be done feloniously, “accompanied

by an evil intention” or “done with a mind bent on doing that

which is wrong”.

Interestingly, Manisty, J, a judge for the minority commented

on what he thought was one principle reason why the Act had

been passed which was “namely, the consequence of a married person

marrying again in the lifetime of his or her former wife or

husband, in which case it might and in many cases would be that

several children of the second marriage would be born and all would

be bastards.”

So it is clear then that the law of bigamy has not been the

easiest to interpret. “Whosoever being married shall marry any

other person” is taken to mean that “whoever, being married

monogamously shall go through a marriage ceremony”.

Whether a person who started with a potentially-polygamous

marriage is married monogamously is seen to depend on the laws

of the place where he married, and on his domicile, which the

court will decide for him.

Treating a “second marriage” as only the second in a series

would have allowed men to marry wives three and four with impunity,

but when this was re-read as if to mean the “second marriage

on the indictment” it allowed the defence of the first seven

year absence to be applied to a series of bigamous marriages even

on the same day.

“Elsewhere” has been taken to mean anywhere in the world

for a British subject, so that a peer of the realm underwent three

months hard labour because the English courts would not recognise

his divorce, and yet it is unclear that a British subject would be

guilty if he married someone abroad who was not a British subject.

And this appears to have led the courts to distinguish between

polygamous and monogamous first marriages in order to

prevent the absurdity of British subjects being convicted in England

for polygamous marriages which were legal in the colonies

in which they lived.

Finally, an Act written in absolute terms has been held to require

a mens rea which is relatively undefined, save that it includes

mistakes of fact as to death, divorce and invalidation of the first

marriage, although even this judgment was not followed by a later

Court of Appeal, whose judgment in turn had to be rejected by a

yet later Court. And the Court in R v Tolson seemed to imply that

the form of guilty mind needed to include some form of immoral

or evil intent in addition to the intent to breach the absolute terms

of the Act, and that a belief that the former spouse was alive would

not be enough for guilt due to the proviso for a seven year absence.

It is only recently that courts have taken to examining

parliamentary debates to ascertain the purposes of Parliament in

legislating, and as the law establishing bigamy is of considerable

antiquity, and the more modern statutes mainly re-enacted the

provisions of the earlier law, there is little hope of uncovering the

proceedings which give the real reasons.

The judges in R v Tolson could not agree on the weight to be

lent to the Act of 1604 in determining the meaning of its surviving

descendent, but the Court which upheld their decision in R v

Gould does reveal some evidence of how the Court of Appeal views

the Act. Diplock, LJ, when commenting on the proviso, said “in

1603, when the jurisdiction of the Ecclesiastical Courts was still

in the realm of political controversy and statutory draftsmanship

was in its infancy, it may well have been prudent to state expressly

what the consequences of the decrees of the Ecclesiastical Courts

should be as respects the newly created felony.” This supports the

view that the Act was part of a slow transfer of power from the

Church to the State or, more particularly, away from the Church,

echoed in James 1’s main achievement, of providing a Bible which

was widely available in the language of the masses and not just the

language of the churchmen. Indeed, according to Diplock, LJ,

even the provisions of the Act of 1861 were drawn in mind of a

recent transfer of matrimonial jurisdiction away from the

Ecclesiastical Courts.

One reason then for the bigamy statute is for the state to take

responsibility for areas previously entrusted to the Church. Another

is that given above by Manisty, J, that legally unrecognised

marriages would increase the rate of illegitimacy. His fellow judges,

in discussing the mens rea allude to something beyond the words

of the statute, something involving a moral as well as a legal wrong,

similar to how fornication and seduction were viewed at the time,

POLYGAMY, BIGAMY AND HUMAN RIGHTS LAW 37

6085-CHAP

which would have been less than a valid and honourable marriage.

They imply that the serious sentences which follow conviction

help to show the need for moral culpability.

Aside from this case there are few clues as to the reasoning

behind the prohibition of bigamy. There is the judgment of

Cockburn, C.J. that bigamy is not directed at polygamy so much

as the abandonment of subsisting marriages and the subsequent

“prostitution of a solemn ceremony” in order to give the pretense

of marriage where it does not exist, involving outrage, scandal and

deception, (in R v Allen (1872) LR 1 CCR 367 at 374) and the

highly favourable acceptance in R v King of the Australian High

Court decision of Thomas v The King (1937) 59 CLR 279 that “it

is only because of the wrong done by the wickedness of going

through a form of marriage with the knowledge of the impediment

of a previous marriage that the subsequent marriage merits

punishment.”

And there is a case from another jurisdiction which can also

assist in our formulation of policy reasons for the law. The case of

Attorney-General of Ceylon v Reid [1965] A.C. 720 involved a man

who had married monogamously, separated from his wife, converted

to the Muslim faith and married a Muslim woman polygamously.

The Privy Council held that in a country of many races and creeds,

and with a number of marriage laws which allowed adherents of

different faiths to be governed by their personal law that a Christian

monogamous marriage could not prohibit for all time a change of

personal law and adoption of polygamy. Reid had an inherent

right to change his religion and contract a valid polygamous

marriage, if recognised by the laws of Ceylon, notwithstanding an

earlier subsisting monogamous marriage. This establishes both that

monogamous marriages can become polygamous, and that the

bigamy laws could not be applied to such future monogamous

marriages. Hence it seems reasonable to suggest that the laws against

bigamy, which covered Ceylon at the time, were not intended to

prevent those who had married monogamously from marrying

polygamously.

And then there is the Act of 1604 itself, which sought to restrain

the “evil disposed persons beinge maried, runne out of one

Countie into another, or into places where they are not knowen,

and there become to be maried, havinge another husband or wife

livinge to the greate dishonour of God and utter undoinge of divers

honest mens children and others”, which links the offence to concepts

of evil, the exploitation of ignorance, abandonment of responsibilities,

lack of respect for God, and its effects on other people,

presumably the victims.

While it may be difficult to establish much about the reasoning

behind the bigamy laws, it is possible to eliminate reasons by use

of the analysis of those laws conducted earlier in this chapter.

Bigamy is not illegal in order to prevent polygamy, as a bigamous

marriage is not recognised by the law, and polygamous marriages

in the colonies have been allowed to be added to monogamous

marriages already contracted. Neither is it illegal in order to

limit what polygamy already exists, because such marriages do not

count as first marriages for bigamy prosecutions. It is not illegal

because of an inherent wrong in the act, as it depends on a guilty

mind, and it is not illegal in order to stop all second marriages as it

expressly provides a defence to anyone who has been abandoned

without trace for over seven years.

Nor is bigamy illegal in order to punish a second marriage, as

such a marriage is unrecognised by the law. It is not illegal in order

to punish a knowledge that the original spouse remains alive, due

to the operation of the proviso, and it does not even seem to be

concerned with eliminating deceit as the law allows those with

pre-existing potentially polygamous marriages to go through further

ceremonies with impunity.

There are also some related offences which need to be

considered. In the case of R v Bham [1966] 1 QB 159 [1965] All

ER 124 a man was prosecuted for the related offence of solemnising

a marriage in a building which was not registered under the Marriage

Act. The ceremony was designed to meet the requirements of the

Islamic faith, but did not confer the recognition of the marriage

by English Law, and was not intended to. The Court of Appeal

held that the offence of solemnising the marriage was only made

out when the marriage would have been recognised by English

law. As it wasn’t, there was no offence.

Finally, a number of writers allude to the fact that people attempting

to marry have to make statements that they are single

and free to marry, suggesting that this covers the question of those

who have a prior potentially-polygamous marriage. False statements,

they argue, could be charged as perjury. However, as Bartholomew

points out in “Polygamous Marriages and English Criminal Law”

(1954) 17 MLR 344, if a man with such a marriage is “single” for

the purposes of bigamy, what is to stop him being “single” for the

purposes of perjury in the very statement he makes to obtain the

ceremony? In fact, from what the courts have said about bigamy,

he would not appear to be lying at all.

Consequently, it appears that the policy of the law is not to

ban bigamy to prevent people lending respectability to their relationship

by going through a marriage ceremony even in England,

for only the official ceremony appears to be capable of founding an

offence.