Does a common-law marriage 'count' twards a charge of bigamy?

[Emilio_Lizardo]

Imagine I live in a state that recognizes common-law marriage. My partner and I perform all of the motions required to have undergone such (live together for the prescribed period, refer to ourselves as husband and wife, etc) but the relationship is neither solemnized nor recorded. After a while, ardor cools and we go our separate ways, but without any formal divorce. Some time later, I get married agian – either a ‘formal’ marriage, or another common-law one. Can I be charged with bigamy at this point?

[Annie-Xmas]

Ask William Hurt

[Telemark]

Some resources:

Common-law marriage

http://www.nolo.com/article.cfm/ObjectID/709FAEE4-ABEA-4E17-BA34836388313A3C/catID/3C3AF4CE-DB9E-48C4-8DFCFE2E47C91747/118/304/145/FAQ/
http://www.unmarried.org/common.html
http://www.expertlaw.com/library/family_law/common_law.html

It varies from state to state, but a general trend is that once in a common law marriage, you are married and there’s no such thing as a common law divorce. You must go through the normal procedures to dissolve a common law marriage.

[jackelope]

Telemark is right; a common-law marriage generally has to be dissolved by a formal divorce. And for this part:

@Emilio Lizardo

Some time later, I get married agian – either a ‘formal’ marriage, or another common-law one.

You couldn’t get into another common-law marriage at that point. One of the requirements for a common-law marriage to be valid is that both parties must be legally able to marry: Of age, mentally competent, not already married, etc. So either of these attempted subsequent marriages would be void from the start.

[Mr.Slant]

Given that in many (all?) locations, acting as man and wife and representing yourselves as such is an element of said marriages, it should be evident to any would-be polygamists that they’re NOT free and clear.

On edit: Neat! Hurt played Atreides TWICE.

[Keeve]

@jackelope

Telemark is right; a common-law marriage generally has to be dissolved by a formal divorce. And for this part:You couldn’t get into another common-law marriage at that point. One of the requirements for a common-law marriage to be valid is that both parties must be legally able to marry:

If I understand that correctly, if one ends a marriage (either common-law or conventional), but without any sort of divorce, and then goes through all the motions of entering into a common-law marriage, then this latter marriage has no legal meaning, and therefore there cannot be any charge of bigamy.

But that doesn’t sound right. To be guilty of bigamy, does the second marriage have to be a conventional one, or can it even be a common-law one?

[Contrapuntal]

@Annie-Xmas

Ask William Hurt

I don’t see anything about bigamy in that link.

[Mr.Slant]

Good question.
You do realize that this story has to be played out in the '80s or earlier, right?
Common-law marriages exist in several states, but they need to have been entered into prior to a cut-off date that was set a decade or more ago in those states that used to recognize them.

[Mr.Slant]

I meant to add, I have no cite, but I believe a second common-law marriage WOULD have counted.

[Freudian_Slit]

@Contrapuntal

I don’t see anything about bigamy in that link.

Here it is:

Fluent in French, Hurt maintains a home outside Paris. He has a daughter with actress Sandrine Bonnaire and a son with Sandra Jennings, who sued Hurt in the late 1980s claiming she was his common-law wife. Hurt won the case. He was previously married to Mary Beth Hurt from 1971 to 1982 and lived with Marlee Matlin for a period of time in 1986. Hurt has two sons, named Sam and William Hurt, from his 1989-92 marriage to Heidi Henderson.

I have a question–what if you represent yourself as being married to more than one person? That is, you act like you’re married to more than one person, live together, etc. I guess I’m wondering if something like the situation in “Big Love” is subject to the law. I always assumed not, since the main character, Bill, is legally married to one wife and has two other wives that he’s not married to. Generally, he only presents one wife to the world. If he went around acting like he was married to all three, would that be wrong?

[Contrapuntal]

@Zoggie

Here it is:
I have a question–what if you represent yourself as being married to more than one person? That is, you act like you’re married to more than one person, live together, etc. I guess I’m wondering if something like the situation in “Big Love” is subject to the law. I always assumed not, since the main character, Bill, is legally married to one wife and has two other wives that he’s not married to. Generally, he only presents one wife to the world. If he went around acting like he was married to all three, would that be wrong?

Help me. Bold the word “bigamy.”

[Gfactor]

@Mr. Slant

Good question.
You do realize that this story has to be played out in the '80s or earlier, right?
Common-law marriages exist in several states, but they need to have been entered into prior to a cut-off date that was set a decade or more ago in those states that used to recognize them.

I don’t think that’s entirely correct. Certainly the date isn’t. http://www.unmarried.org/common.html

*and see, e.g., *

Pennsylvania does not recognize common law marriages attempted to be entered into after January 1, 2005. Pennsylvania Governor Ed Rendall signed the new legislation that abolishes common law marriages on a prospective basis after January 1, 2005. The legislation provides that it does not invalidate any common law marriage “otherwise lawful and contracted on or before January 1, 2005.” Pennsylvania was one of the few remaining states to permit common law marriages until the Pennsylvania Commonwealth Court’s September 2003 decision in PNC Bank Corporation v. Workers’ Compensation Appeals Board that purported to abolish common law marriage. However, the Pennsylvania Superior Court in two subsequent opinions refused to follow the PNC Bank Corporation opinion indicating that the abolition of common law marriage should only be done with a statute enacted by the Pennsylvania legislature and not by judicial action.

http://www.divorcehq.com/articles/annulment.html

[Emilio_Lizardo]

Is there a statute of limitations on bigamy of this sort? In order to prove a charge of bigamy, you’d have to prove that a prior common-law marriage did, in fact, exist. It seems to me that to get beyond a he-said she-said situation you’d need eyewitness testimony from people who observed the couple in question, since the marriage is, in part, defined by their public behavior. That testimony would get cold after a while, I’d think.

[Mr.Slant]

Ah, poo. My fault. I was confusing Ohio law with the national trend.

[Gfactor]

@Keeve

If I understand that correctly, if one ends a marriage (either common-law or conventional), but without any sort of divorce, and then goes through all the motions of entering into a common-law marriage, then this latter marriage has no legal meaning, and therefore there cannot be any charge of bigamy.

Any bigamous marriage is void. If this were the rule, nobody could be convicted of bigamy.

But that doesn’t sound right. To be guilty of bigamy, does the second marriage have to be a conventional one, or can it even be a common-law one?

While this case is older (1925) and has a weird fact pattern, it suggests that a common-law marriage can be bigamous, and also gives another ground for rejecting the second-marriage-is-void argument:

While we are decidedly of the opinion that the marriage between the defendant and Mrs. Harvey, II, upon their return to this state during the time they lived together here, had become in all respects a valid and binding marriage under the common law, we believe there is another reason for declining to hold the marriage void. That reason is based on public policy, on the view that a defendant charged with a crime will not be permitted to take advantage of his own wrong.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ok&vol=/appeals/1925/&invol=32724

I did a bit of searching and found cases going both ways on this point though.

[Gfactor]

As far as the OP goes, the Tom Green bigamy case is instructive. In Green’s case,

Green avoided being in more than one licensed marriage at a time by terminating each licensed marriage by divorce prior to obtaining a license for a new marriage. Green then continued his relationships with each of the women he divorced as if no divorce had occurred.

http://www.courttv.com/news/polygamy/docs/greendecision.pdf

In April 2000, the State filed an information charging Green with, among other things, four counts of bigamy. Prior to a preliminary hearing on the charges, the State filed a motion asking that the court recognize the existence of a valid marriage between Green and Linda Kunz. The State based its motion on section 30-1-4.5 of the Utah Code, which codifies common law marriage principles, Whyte v. Blair, 885 P.2d 791, 793-94 (Utah 1994), and allows for the finding of a valid marriage in the absence of solemnization. In response to the motion, the district court held an evidentiary hearing in which Linda Kunz was allowed to intervene.

¶8 On July 10, 2000, the district court issued a memorandum decision declaring that Green and Linda Kunz were legally married pursuant to section 30-1-4.5. specifically, the district court found that as of November 2, 1995 (the date on which Green divorced Hannah Bjorkman), both Green and Linda Kunz were single, were capable of giving consent to be married, and otherwise satisfied the requirements of section 30-1-4.5 for creating a valid unsolemnized marriage. Accordingly, the district court found that Green and Linda Kunz shared a valid marriage as of November 2, 1995.(6) The district court also found probable cause to bind Green over on the four bigamy charges.

Id.

Green was convicted and the Utah Supreme Court upheld his conviction. The Court didn’t decide the common-law marriage-bigamy question because Green didn’t brief it properly.

[Foxy40]

@Zoggie

Here it is:
I have a question–what if you represent yourself as being married to more than one person? That is, you act like you’re married to more than one person, live together, etc. I guess I’m wondering if something like the situation in “Big Love” is subject to the law. I always assumed not, since the main character, Bill, is legally married to one wife and has two other wives that he’s not married to. Generally, he only presents one wife to the world. If he went around acting like he was married to all three, would that be wrong?

Some of you may remember my threads about the craziness I am still going through over my father-in-law’s death. After his girlfriend claimed to be his wife both to their friends and neighbors in Alabama and on his death certificate, we discovered she was still legally married to another. She used the claim of being common law wife to take property and empty his bank accounts and yet Florida doesn’t consider it bigamy even though they do acknowledge other state’s common law unions. So apparently to the OP, it may count as bigamy but I doubt anyone cares enough to do anything about it.

[Epimetheus]

@Contrapuntal

Help me. Bold the word “bigamy.”

:dubious:

You have to see the word bigamy to believe the topic is about bigamy? Wow, that’s some bad reading comprehension.

[Freudian_Slit]

@Contrapuntal

Help me. Bold the word “bigamy.”

Well, since he won when his common law wife tried to sue him (despite the fact that they did not formally dissolve the marriage), in this case I assume there was no need to use the word “bigamy.”

[Gfactor]

@Emilio Lizardo

Is there a statute of limitations on bigamy of this sort?

a felony or negligent homicide shall be commenced within four years after it is committed,

http://le.utah.gov/~code/TITLE76/htm/76_01014.htm

That appears to be the general statute in Utah, for example. It’s going to vary from state to state.

Of course, a court could find that the offense is continuing. Factually, it obviously is–I’m talking legally. *See, e.g., *

Some courts have recognized that, when an offense is a continuing one, the period of limitation does not begin to run until after the defendant’s activities end.

A “continuous offense” or “continuing offense” is a continuous, unlawful
act or series of acts set in motion by a single impulse and operated by
unintermittent force; it is a breach of criminal law, not terminated by a
single act or fact, but subsisting for a definite period and intended to cover
or apply to successive similar obligations or occurrences.

In Toussie v. United States, the United States Supreme Court considered whether failure to register for the draft was a continuing violation that would extend the statute of limitations for the offense. The Court held that it was not. In reaching this holding, the Court articulated two factors to consider in analyzing whether an offense should be considered a continuing violation. The Court first noted that, in general, a statute of limitations should be liberally interpreted infavor of repose. Second, the Court stated that where a criminal statute of limitation prescribes a
specific limitations period for particular crimes, the particular offense should not be considered a continuing one “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.

statlmt.pdf

and compare,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ok&vol=/appeals/1928/&invol=38004 (bigamy not a continuing offense) *with * http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=case&no=982356 (citing dissent in Toussie, which listed bigamy as a continuing offense)

In order to prove a charge of bigamy, you’d have to prove that a prior common-law marriage did, in fact, exist. It seems to me that to get beyond a he-said she-said situation you’d need eyewitness testimony from people who observed the couple in question, since the marriage is, in part, defined by their public behavior. That testimony would get cold after a while, I’d think.

This is true of just about any crime.