Bigamy is one of those crimes we think doesn’t happen anymore, like challenging your rival to a duel or cheque fraud. But it appears that it still has a place in modern society.
Bigamy is the crime of going through a marriage ceremony with a second person while still being in a marriage that has not been dissolved by death, divorce, or annulment. It is provided for in our Penal Code, along with marriage with dishonest or fraudulent intent, which also carries a 5-year sentence. Additionally, signing a false marriage certificate can result in a 7-year sentence.
The effect of bigamy is that the second “marriage” is void.
As with all crimes, there must be the appropriate mens rea or criminal intent. The mens rea is undoubtedly present when the bigamist knows that he or she is still married, as is most often the case—separation from your spouse is not enough to allow a second marriage.
The Indian Court dealt with a landmark case involving a woman married to a man who converted to another religion. He had been married to his wife for a long period, and they had children from their marriage. However, he entered into a second marriage. The Court ruled that the husband had converted to avoid prosecution under bigamy and had no faith in his new religion. The second “marriage” was found to be fraudulent, and the first marriage could not be dissolved simply because the husband converted to a different religion.
Bigamy can, and should be, dealt with by criminal law, but there are also remedies in civil law.
The Natal High Court found that where a man purported to enter into a second civil marriage while his first marriage was still valid, the second marriage was bigamous and unlawful. In that case, the second wife was unaware of the first marriage and had a claim for damages against the husband. However, she had no claim for spousal support.
A duped second “wife” may apply for the marriage to be declared null and void and may claim damages for impairment of dignity, insult, and degradation, as may the wronged first wife.
However, if you know a person to be already married and receive a proposal of marriage from them, don’t expect to be able to make a claim for breach of promise to marry!
In our own courts, the reported case of Ntshekang v Pule dealt with the position of the law in regard to customary law. It was found that “A party married according to civil rights commits bigamy if he or she marries again before divorcing the spouse in the first marriage. Similarly, a party married according to customary law commits bigamy if he or she contracts a civil rights marriage with a third party. The only time a party married according to customary law may contract a civil rights marriage is if he or she marries the spouse already married to him or her according to customary law before a second customary marriage is contracted by the husband with a third party.”
At Armstrongs, we have very recently dealt with two cases of bigamy—both instances committed by husbands. In the first, the husband from Botswana was married under civil law. The marriage turned sour, but instead of seeking a divorce, he simply married his new paramour in a neighboring country, swearing on oath that there was no impediment to the second marriage. Because the offense was not committed in Botswana, our neighbors’ authorities are dealing with it.
In the second case, the husband had been married for many years following a civil ceremony in the United Kingdom and is still married. He and his wife have two adult children. The wife quite by chance discovered a marriage certificate from a marriage officer in Botswana and a video of the wedding. The husband is shown in the video swearing that he had never been married before and that there was no impediment to his marriage to his very young bride, whom he apparently met on a dating site.
We obtained an order ring-fencing the husband’s considerable assets in Botswana pending the wife’s divorce action in the United Kingdom and her claim for her half-share of the assets.
The lessons to be learned—unless you want five years in prison and two mothers-in-law—dissolve your first marriage first, and be careful of whom you meet on a dating site.
