As a family lawyer in Perth, it is not uncommon for people to rush into my office seeking a quick divorce after many, many years of separation. Why the haste? Whilst the single ground for divorce within Australia is the irretrievable breakdown of the marriage, I often wonder what spurs this sudden desire to become legally divorced from one’s spouse after so many years of living separately and apart.
Often, people survive the anguish of separation, resolve financial matters and settle into a status quo regarding time spent with the children. Applying for a divorce becomes a secondary consideration in the everyday hustle and bustle of life.
Suddenly, someone new appears. Drinks turn into dinners, dinners into dates and so on and so forth. As the new couple turn their minds to the prospect of a life together, the question of marriage arises and in turn, the need to obtain a divorce to legally marry again.
Bigamy, the act of entering into a second marriage whilst married to another, is an offence of strict liability, punishable with 5 years imprisonment. The matter of strict liability applies to the physical element of circumstance, that is, a person will be guilty of bigamy if he or she was married when that person participated in a legal marriage ceremony with another person.
This may seem an antiquated offence in the contemporary realm of fraud, assault and the like, however in Tasmania in 2005, a British man was sentenced to 22 months imprisonment for bigamy, dishonesty and forgery. The man’s wife had commenced proceedings for divorce in the United Kingdom after learning that her husband had been unfaithful. The British divorce proceedings had not concluded at the time the man forged divorce papers to con his Australian fiancé and priest into participating in his second marriage.
In defending the charge of bigamy, the onus is on the defendant to prove that:
- at the time of participating in the subsequent marriage ceremony, he or she reasonably believed his or her spouse to be deceased; and
- the spouse had been absent from the defendant for such time and in such circumstances as to provide, at the time of the subsequent ceremony, reasonable grounds for presuming the spouse was deceased.
An honest and reasonable belief of one party that he or she was legally divorced at the time of entering the subsequent marriage is not a sufficient defence to a charge of bigamy. Put simply, the defendant must show reasonable grounds for believing or inferring his or her spouse was deceased at the time of entering the second marriage.
An order for divorce will take effect one month and one day after being made by the court. After this period has elapsed, the parties are able to enter into a new marriage, without exposure to criminal prosecution on the ground of bigamy. In special circumstances, the court can abridge (shorten) the time of one month and one day after an order for divorce is made, to enable a new marriage to proceed.