What Happens if You Marry Someone Who Was Not Legally Divorced?
By Ciele Edwards
In 1862, Congress passed the Morrill Anti-Bigamy Act. This federal law rendered bigamy – the practice of marrying a second spouse without legally divorcing the first spouse – illegal. While the laws prohibiting bigamy have been challenged as a violation of some individuals' religious freedom under the First Amendment, the ban on bigamy remains in place. If your spouse did not obtain a legal divorce from a prior spouse before marrying you, he is guilty of bigamy.
State laws vary on the subject of bigamous marriages, but a bigamous marriage is not a valid one – even if both parties entered into the marriage in good faith and believe that a previous marriage was successfully dissolved. A court ruling to annul the marriage is generally not necessary because the marriage is legally invalid from its inception.
States that recognize domestic partnerships may possess anti-bigamy laws to protect same-sex couples that benefit from domestic partnerships. California, for example, recognizes same-sex couples in its bigamy laws and notes that, like marriage, a domestic partnership is not legally valid if one party did not dissolve a previous domestic partnership before the new union took place.
Common Law Marriages
Although the exact requirements vary by state, a common-law marriage exists when a couple either live together for a specified period of time, present themselves to the community as husband and wife or both. At the time of publication, nine states recognize common-law marriages as legally binding. The National Conference of State Legislatures notes that a couple living as husband and wife under the common-law statute cannot separate without obtaining a legal divorce. There is no such thing as a common-law divorce. Thus, if your previous relationship qualified as a common-law marriage and it did not end in divorce, you could be charged with bigamy when you remarry.
Knowingly committing bigamy carries considerable consequences depending on your state of residence. Under Illinois law, for example, bigamy is a felony punishable by either fines, prison time or both. Illinois' legal code also notes that bigamy does not solely apply to the individual with two or more spouses. If the individual marrying the bigamist is aware that he is already legally married, she too is guilty of bigamy.
The general rule regarding bigamy is that if an individual's spouse is still living and she does not procure a divorce from that spouse before remarrying, she is a bigamist. There is one notable circumstance in which this rule does not apply: a spouse that is presumed dead. If an individual's spouse is presumed legally dead under his state's laws, he is free to remarry without first procuring a divorce. Because his first spouse is presumed dead, a divorce is not necessary and his subsequent marriage is not bigamous.
- Public Broadcasting Stations: Events in the West 1860 – 1870
- American Law Library: Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes, Suggestions For Further Reading
- Kinsey Law Offices: Annulment (Nullity of Marriage) in California
- Illinois General Assembly: Illinois Compiled Statutes (Sec. 11-45)
- National Conference of State Legislatures: Common-Law Marriage
- The Kavinoky Law Firm: Bigamy
- Lentz & Gengaro LLP: Bigamy
Ciele Edwards holds a Bachelor of Arts in English and has been a consumer advocate and credit specialist for more than 10 years. She currently works in the real-estate industry as a consumer credit and debt specialist. Edwards has experience working with collections, liens, judgments, bankruptcies, loans and credit law.