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ii) Second Marriage
To sustain a charge of bigamy the previous marriage, must have been valid. If that marriage was void the man who proceeds to marry some other woman will only apparently commit bigamy, but in reality, he does not commit the crime at all. And it does not matter that the previous marriage was not yet set aside at the time of the second marriage. That is null is inexistent even though the nullity has not yet been pronounced311 .
If upon a charge of bigamy, the plea is set up of the nullity of the previous marriage, the proceedings are usually suspended until the point is decided by the competent Civil Court.
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(ii) Second Marriage
The second element of the crime of bigamy is the solemnisation of another marriage while the previous marriage still subsists. This second marriage must have been solemnised in the form and must satisfy all the requirements of a valid marriage so that it would have been valid were it not only for the impediment arising out of the subsistence of the previous marriage. This is, at any rate, the continental doctrine. In England, however, it was held that, though the subsistence of the second marriage would have been void as for consanguinity or the like, the defendant was guilty of bigamy312 . In Archbold313 it was thus stated:
“Where a person already bound by an existing marriage goes through a form of marriage known to and recognised by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage the case is not the less within the Statute (Offences against the Person Act, 1861, s. 57), by reason of any special circumstances which, independently of the bigamous character of the marriage, may constitute a legal disability in the particular parties, or make the form of marriage resorted to specially inapplicable to their individual case314 […] And therefore where A having a wife living, married another woman, to whom he stood within the prohibited degrees of affinity, so that the second marriage, even if not bigamous, would have been void under 5 & 6 Will. 4c 54 322, he was held to be guilty of bigamy”.
311 Vide Carrara "Pensieri", p. 230 et. Seq. 312 Rex vs Brown, 1 C & K 144 313 Op. cit., p. 1337 314 Rex vs Allen
