BIGAMYBIGAMYBIGAMYBIGAMYBIGAMY
I. STATUTORY BASIS
The statutory basis of bigamy is set forth in N.J.S.A.
2C:24-1. Bigamy is a disorderly persons offense, and it
occurs if a married person contracts or purports to
contract another person in marriage. The other person
involved is also guilty of bigamy if he contracts or
purports to contract marriage with an individual while
knowing that the person is married. There are four
exceptions in which bigamy does not occur: (1) if the
actor believes that the prior spouse is dead; (2) if the actor
and the prior spouse have been living apart for five
consecutive years throughout which the prior spouse was
not known by the actor to be alive; (3) if a court entered
a judgment purporting to terminate or annual any prior
disqualifying marriage, and the actor does not know that
judgment is invalid; or (4) if the actor reasonably believes
that he is legally eligible to remarry.
II. JURISDICTION
Bigamy prosecutions must ordinarily be brought in
the jurisdiction where the second marriage -- the crime -
- took place. State V. Ishaque, 312 N.J. Super. 207 (Law
Div. 1997). This is based on the principle that
jurisdiction over crimes is local, and no state can punish
for a crime committed in another state. Id. at 210. In
State v. Ishaque, defendant married his first wife in New
Jersey, then later traveled to Pakistan and married his
second wife. After defendant returned to New Jersey, his
second wife charged him in municipal court with
bigamy. The court held that the “place where the second
marriage is entered into or solemnized is the jurisdiction
which determines if a criminal offense has occurred.” Id.
at 210. See N.J.S.A. 2C:1-3, “Territorial applicability.”
III. REASONABLE BELIEF IN ELIGIBILITY TO MARRY
An honest belief, reasonably entertained by
defendant, that he was legally free to marry may
constitute a valid defense to a bigamy prosecution in New
Jersey. State v. De Meo, 20 N.J. 1 (1955). However, this
must be a realistic belief. In State v. De Meo, defendant
remarried on the basis of a Mexican mail order divorce.
The court noted that the general public recognizes the
“valueless character of mail order divorces.” Id. at 14,
quoting from State v. Najjar, 1 N.J. Super. 208 (App.
Div.) quoting from Caldwell v. Caldwell, 298 N.Y. 146,
81 N.E.2d 60 (N.Y. 1948), aff’d, 2 N.J. 208 (1949).
Further, in State v. De Meo, defendant did not testify that
he took any steps to ascertain the legal validity of the
divorce. State v. De Meo, 20 N.J. at 14. As such, he had
no defense to a bigamy prosecution. Id. See State v.
Najjar, 1 N.J. Super 208. But cf., Heuer v. Heuer, 152 N.J.
226 (1998) (While not directly addressing issue of
bigamy, the Court examined the validity of wife’s earlier
out-of-state divorce, in light of current husband’s
attempt to annul their marriage with a claim that her
prior divorce was not valid. The Court held that
defendant/husband was estopped from attacking validity
of the marriage, in his attempt to escape financial support
duties to the family.); Danes v. Smith, 30 N.J. Super. 292
(App. Div. 1954).IV. ACTOR BELIEVES THE PRIOR SPOUSE IS DEAD
The presumption of death after an unexplained
absence does not arise where the supposed decedent has
been heard from and there is reliable information that he
was alive within the past four years. Spiltoir v. Spiltoir, 72
N.J. Eq. 50 (N.J. Ch. 1906).V. EVIDENCE
In a bigamy prosecution, evidence that man and
woman lived together, had a child together, and he
presented her as his wife, justified a finding that
defendant had entered into a common-law marriage with
a woman before marrying another. State v. Thompson, 76
N.J.L. 197 (1908). Accord, State v. Cromwell, 6 N.J. Misc.
221 (Sup. Ct. 1928).