What is Bigamy?

What is bigamy?

It is whereby a person who is lawfully married under the law and without terminating such a marriage contracts another marriage with someone else. Bigamy is a criminal offence in terms of the Criminal Law (Codification and Reform) Act.

Bigamy takes the following forms:-

  • Put simply, if a person is married to someone under the civil marriage [Chapter 5:11], which is a monogamous marriage allowing a man to marry only one wife, and without legally dissolving such a marriage (divorce process) enters into another marriage with someone else, such person would have committed the crime of bigamy. This is expressed in section 104 of the Criminal Law (Codification and Reform) Act as follows, “Any person who, being a party to a monogamous marriage (allowing a person to marry one spouse) and, knowing that the marriage still subsists, intentionally purports to enter into another marriage, whether monogamous or polygamous, with a person other than his or her spouse by the first-mentioned marriage shall be guilty of bigamy.
  • This also occurs when a man who is married to two or more wives under registered customary marriage (this kind of marriage is potentially polygamous, meaning the husband is allowed to marry many wives customarily), however if such a man therefore goes on to marry someone else under a civil marriage [Chapter 5:11], popularly known as Chapter 37, a monogamous marriage which marriage allows him to have only one wife, then he would have committed bigamy. This is provided for in the Criminal Law Code section 104 which states that, “any person who being a party to an actually polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person or whereby a person who being a party to a potentially polygamous marriage and, knowing that the marriage still subsists, intentionally purports to enter into a monogamous marriage with any person other than his or her spouse by the potentially polygamous marriage shall be guilty of bigamy.
  • Lastly bigamy is also committed in situations where parties are married under an unregistered customary marriage and the husband then marries another wife under a civil marriage [Chapter 5:11], such husband would have committed the crime of bigamy. In the case that either of the spouses denies being party to the unregistered customary law union, it shall be the duty of the prosecution to prove that such a marriage or union existed and the party in denial was a party to that marriage. This is expressed in section 104 of the Criminal Law Code which provides that, “where a person is accused of bigamy in circumstances where he or she is it is alleged to have entered into a monogamous marriage while being a party to an unregistered customary law marriage with another person, and the accused denies that he or she is a party to the unregistered customary law marriage, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that he or she is a party to the unregistered customary law marriage”.

SONIA. R.FASHI

 

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