Odger's English Common Law

invalid 1
BIGAMY. 217
or that he was not a party to it. But he usually
relies on one or other of the three following defences :
(a) That the husband or wife of the person charged with
bigamy has " been continually absent from such person for
the space of seven years then last past, and shall not have
been known by such person to be living within that time." 2
If a man be absent from his home for seven years and
nothing be heard of him, then at the end of the seven years
the law presumes that he is dead ;
—
and his wife may do so too ;
she can therefore remarry with impunity. The burden of
proving that the accused knew that his or her spouse was alive
during the seven years lies on the prosecution. 3
(b) It is also a good defence to a prosecution for bigamy
for the accused to show that he or she, in good faith and on
reasonable grounds, believed his or her spouse to be dead,
even though seven years have not elapsed between the date
at which he or she last knew his or her spouse to be alive
and the date of the second marriage ceremony. There must
be an honest belief that the husband or wife was dead, and
this belief must be based on reasonable grounds.
This principle was established by the decision in R. v. Tolson,* in which
case the facts were as follows :
—
Mrs. Tolson was married on September 11, 1880. She was deserted by
her husband on December 13, 1881. She and her father on inquiry
learned from her husband's elder brother and from general report that he
had gone down on a ship bound for America. On January 10, 1887,
believing herself a widow, she married again ; and in December, 1887,
Tolson reappeared. She was tried for bigamy and sentenced to one day's
imprisonment. The Court for Crown Cases Eeserved held that she was
not guilty of bigamy, as there was no criminal intent on her part.
In both the cases (a) and (b), though the spouse who remarries is not
guilty of any crime, the second marriage is invalid, as the first spouse was
then still alive and undivorced, and the children of the second marriage
are therefore illegitimate.
But though an honest error based on reasonable grounds
as to a question of fact may afford the accused a defence, an
error as to a point of law will not.
> R. v. Nagvih, [1917] 1 K. B. 359.
2 24 & 25 Vict. c. ICO, s. 57.
» R. v. Curgerwen (1865), L. E. 1 C. C. B. 1.
' (1889), 23 Q. B. D. 168.