Punishment

The honest belief that the previous marriage was dissolved operates as a mistake of fact. But in England it was held that such “bona fide” belief is not sufficient unless proper and reasonable enquiries have in fact been made by the prisoner319 .

The requisite criminal intent must be present at the time of the celebration of the second marriage. If it is excluded by good faith at that time as we have already said, the discovery afterwards of the subsistence of the previous marriage will not suffice to constitute bigamy: the continued cohabitation of the parties thereafter as husband and wife may, in appropriate cases, only give rise to the crime of adultery.

In the definition of the crime under discussion the law refers only to a “husband or wife” who, being still bound by a valid marriage, remarries. What of the other party to the bigamous marriage not being himself, or herself, married? There is no doubt that if such other party is aware, at that time, of the criminal character of the fact, he is guilty as co-offender. His responsibility flows from the general rules of complicity. Bigamy is a crime the commission of which requires indispensably the concurrence of two persons one of whom must be a person bound by a previous marriage. This personal condition of one of the two parties to the crime is, as has been said, an essential constituent of the crime itself, and the consequences arising therefrom therefore extend to the other party. But it is necessary that such other party should have been aware of the criminal character of the fact. In this connection, as Pessina observes320 a distinction is to be made, with regard to the existence or otherwise of the requisite intentional element, between the party who, being married, proceeds to another marriage, and the party who, not being married, contracts marriage with a married person. Concerning the former, the knowledge which he must have had of the previous marriage is enough to warrant the inference of the criminal intent, and it, therefore, lies on him to rebut this inference and prove his good faith; concerning the latter, on the contrary, it lies on the prosecution to prove that he was aware of the married state of the other party to the marriage.

Punishment

319 Confer Archbold, op. cit., pg. 1339 320 Op. cit., Vol. II, para. 164

The punishment for the crime of bigamy is hard labour or imprisonment for a term of from thirteen months to four years. Bigamy, Kenny points out321 , is a peculiarly elastic crime: the degree of guilt varying according to the degree of deceit practised and the sex of the wronged - from an offence closely approximating in heinousness to a rape, down to cases in which the parties’ only guilt consists in their having misused a legal ceremonial for the purpose of giving a decent appearance to intercourse which they know to be illicit. Indeed, there may even be cases of an undoubtedly criminal bigamy where there is no moral guilt at all. For both parties may have been misled by some very natural misapprehension of law. The great, and unhappily increasing, dissimilarity between the matrimonial laws of civilised nations has made it but too easy for a man and a woman to be husband and wife in one country and yet not so in another.

Jameson also had written:

“This offence (bigamy) is susceptible of many degrees of criminality. The act of entering into a second marriage, during the subsistence of a previous lawful marriage, may in all cases be the same breach of public order, considered as depending on the due maintenance of the institution of marriage. But to the public offence may be added the grossest fraud and injury to an individual, or the act may be extenuated in various degrees by the long absence of a previous consort, as well as by other circumstances, as for example, that of concubine inducing a man to give her the apparent status of a wife at her own risk” .

In the Italian Code of 1889 the punishment for the crime» in ordinary cases, was alternatively that of “reclusione o detenzione” precisely - as the Ministerial Report said:

"Per corrispondere alle varie contigenze del delitto, che può essere macchinato nel modo piu' triste, e può essere al contrario la conseguenza, sebbene colpevole, di circostanze disgraziate e quindi scusabili."

But an increase in the ordinary punishment was provided in case the offender had misled or induced in error the party with whom he contracted the marriage “sulla liberta' dello stato proprio o dì essa”, “here there had been deceit - the Ministerial Report

321 Op. cit., p. 364