16. Bigamy

The offence

Four things: The accused was married. The first marriage was valid and was still subsisting. It had not ended by death, by divorce, or by a decree of nullity. He or she then went through a ceremony of marriage recognised by the law of the place where it was celebrated. The first spouse was alive at that time.

The lecture's question about polygamy: The notes ask whether a customary or Muslim marriage can be the first marriage for this section, and they cite Sarwan Singh for the English view that a potentially polygamous marriage is not such a first marriage. Use that as the lecture's citation, not as a Sierra Leone decision. A statutory marriage under the Christian or civil marriage legislation is the monogamous marriage the section was written for. Do not decide a customary marriage by importing an English dictum you have not read.

The provisos

Divorce: It is a defence that the first marriage has been dissolved by a divorce. The decree must be absolute. R v Wheat and Stocks [1921] 2 KB 119 is not authority that an honest mistake will do. The accused believed, wrongly, that a decree nisi had become absolute. That belief was no defence. The lecture runs the proviso and that case together. Keep them apart.

Nullity: A decree that the first marriage was void is a defence. Inability to consummate is the lecture's example of a ground on which a court might annul. The defence is the decree, not the accused's own view that the marriage was imperfect.

Seven years: It is a defence that the first spouse has been continually absent for seven years, and that the accused did not know that spouse to be living within that time. Both parts are required. Absence alone is not enough if the accused knew the spouse was alive.

The mental element

Tolson: In R v Tolson (1889) 23 QBD 168 the accused remarried believing, on reasonable grounds, that her husband had drowned. The seven-year proviso did not decide the case. A majority held that an honest and reasonable belief that the first spouse was dead was a defence. A minority would have confined the defence to the statute. Tolson is the authority that bigamy is not, on this point, an offence of absolute liability.

Do not use Morgan to rewrite Tolson: DPP v Morgan decides that an honest belief in consent need not be reasonable where the offence requires that mens rea. The lecture then says Morgan makes Tolson's insistence on a reasonable belief unsound for bigamy. That is a textbook argument. It is not the holding in Morgan, and it is not a Sierra Leone decision that bigamy now requires only an honest belief. For this offence, state Tolson as it was decided.