This article is for general information only and should not be relied on for specific legal advice. The author will not be held responsible for any action that a person takes as a result of interpretation of the contents of this article. It is important to seek specific advice from a qualified and experienced lawyer for any legal problem.
What is Bigamy?
It is a criminal offence in Queensland to commit the act of Bigamy. Bigamy is when an individual who is presently married undergoes another form of ceremony or marriage with any other person. This includes marriage ceremonies in foreign countries. In simple terms, bigamy is when one individual is married to more than one person at the same time.
Bigamy is when an individual who is presently married undergoes another form of ceremony or marriage to any other person. Committing the act of bigamy is a criminal offence in Queensland.
Simply put, bigamy is when one individual is married to more than one person at a time.
How does marriage work in Australia?
Marriage in Australia is defined under the Marriage Act 1961 and provides that a person may marry if they are:
- unmarried at the time of the marriage ceremony,
- of marriageable age,
- not marrying a person in a prohibited relationship,
- able to freely consent to the marriage.
An example of bigamy is when Party A is married to Party B, they have not yet formally divorced through a Divorce Order and Party A then marries Party C.
If you have discovered that you have committed bigamy you are required to apply for a Decree of Nullity which is a declaration from the Court that there was no legal marriage despite a marriage ceremony taking place. A Decree of Nullity will therefore ensure the secondary marriage is void.
Laws of Bigamy in Australia
Section 360 of the Criminal Code (Qld) 1899 states;
(1) Any person who—
(a) being married, goes through the form of marriage with any other person during the life of his or her wife or husband; or
(b) goes through the form of marriage with any person whom he or she knows to be married;
(2) It is a defence to a charge of either of the offences defined in this section to prove that at the time of committing the alleged offence the wife or husband of the person already married had been continually absent from him or her for the space of 7 years then last past, unless it is shown that the accused person knew that such wife or husband was living within that time.
Elements of the Offence:-
It is the duty of the prosecutor to prove beyond a reasonable doubt that the Defendant has committed the offence. Every charge has a number of elements that the Prosecutor must prove beyond a reasonable doubt. For the charge of Bigamy the Prosecution must prove the;
- Defendant – The Prosecutor has to prove the identification of the offender;
- Was in a Lawful Marriage – Between Party A and Party B
- and then undergoes an Unlawful Marriage – Between Party A or B to Party C without a formal Divorce Order or Nullity of first lawful marriage, regardless if foreign marriage.
Maximum Penalty for Bigamy:
The maximum penalty for the offence of Bigamy is 7 years imprisonment in Australia.
Convictions:
In Queensland, if a person is convicted of Bigamy, then the court could impose one of the following penalties:
- Jail (suspended, parole or actual time);
- Intensive Corrections Order;
- Probation;
- Community Service Order;
- Fines.
The actual penalty will depend on the circumstances of the matter including the seriousness of the offence and the individual circumstances and background of the Defendant.
Possible Defences:
There are a number of defences available to charges at law. Not every defence is available to every charge. You will need to contact us or seek specific legal advice to see if you have a defence available to you for this charge. Some of the common defences available in criminal charges are;
- Necessity;
- Mistake of Fact;
- Public Safety;
- Self Defence or defence of another person;
- Intoxication;
- Provocation;
- Accident (accidental bigamy);
- Duress;
- Compulsion;
- Insanity;
- Automatism
Which Court will your matter be heard in?
The charge of Bigamy will initially be heard in the Magistrates Court in Queensland. The prosecution will need to obtain a full brief of evidence. The charge is too serious and cannot be heard and determined by a Magistrate. A committal hearing will have to be conducted and then the matter must proceed to the Supreme Court.
If you enter a plea of guilty then the charge will be determined by a Judge. If you enter a plea of Not Guilty then the trial will be before a Judge and Jury. If you are found guilty then you will be sentenced by the Judge.
What should I do if the police want to speak to me about a Bigamy allegation or if I am charged with Bigamy?
You have the right to remain silent. You DO have to provide police with your name, date of birth and contact details. You should NOT answer any questions, make any statement or participate in any interview with the police.
You should be polite to the officer but insist that you want to talk to your lawyer. You have the right to telephone a friend, relative or lawyer.
Contact an expert criminal lawyer
If you are charged with a criminal offence, it is very important that you seek immediate legal advice. Our team at Brooke Winter Solicitors can give you over-the-phone advice. We have a solid reputation as expert Criminal Lawyers and can represent you in court.
Call us on 1300 066 669 or contact us online if you have any questions. We can assist you no matter where you are located and can appear in every court.
