Many of us may suspect we have a bigamist lurking in our family tree. There might be rumours, or a suspicious remarriage where we have not been able to trace the death of the first spouse. But not everyone who remarried during the lifetime of a spouse without first obtaining a divorce was risking prosecution. To gauge whether they were at risk – and what they were risking – we need to know when a remarriage would be a criminal offence and how it was punished. Both these things, as we shall see, changed over time. And although the law did not explicitly differentiate between male and female bigamists, there were some important differences in practice.
Our starting point is 1604, when bigamy was first made a criminal offence punishable by death in England and Wales. Crucially, the new Act contained various exemptions – for example, for those whose spouse had been ‘beyond the seas’ for seven years, or simply absent and not known to be alive during that time. In such cases, if the first spouse was in fact still alive, the second marriage would be void, but not an offence. Given the greater opportunities for men to travel, these exemptions may have benefited wives more than husbands. Also exempt were those who remarried after a ‘divorce’, which in this context meant simply an order from the church courts authorising a separation, rather than a decree terminating a marriage.
During the 17th century, acquittal rates were very high. Even if convicted, men could often avoid the death penalty by pleading ‘benefit of clergy’, which by this time required no more than the ability to read a verse of the Bible. Wives who remarried bigamously were in a riskier position, as it was not until 1691 that benefit of clergy was extended to them. It was only an exemption that could be pleaded once, though. In 1693, Mary Stokes, convicted of bigamy for a second time, made history as the last person to be sentenced to death for the crime at the Old Bailey.
In 1693, Mary Stokes made history as the last person to be sentenced to death for bigamy at the Old Bailey
Convicted bigamists who avoided the death penalty would still be branded on the hand with a red-hot iron, and branding continued to be the main penalty for bigamy for much of the 18th century. Although acquittal rates remained high, especially for women, the courts had no discretion when it came to punishing the guilty.
The 1780s saw a brief window in which the only penalty was likely to be a small fine and a relatively short period of imprisonment. But this leniency was quickly reversed in 1795, when legislation was passed allowing bigamists to be transported to Australia as convicts, or sent to prison for up to two years.
This new discretion as to the appropriate sentence led courts to begin to identify factors that would either aggravate or mitigate the offence. In the first half of the 19th century, around 15 per cent of those convicted of bigamy were sentenced to transportation. Women were far less likely to be sent to Botany Bay than men, and far more likely to receive lenient punishment, with just over a quarter being imprisoned for a month or less.
One reason women began to receive more lenient treatment was because bigamy was increasingly treated as a sexual offence, rather than an offence against God or the institution of marriage. Judges roundly condemned men who had ‘ruined’ chaste women by deceiving them into a bigamous marriage. By contrast, women who had deceived men were not regarded as having harmed them in the same way.
The 19th century also saw changes to the definition of bigamy, with the scope of the exemptions being narrowed in 1828. New legislation stipulated that a remarrying spouse would only escape conviction if they had had no knowledge of their first spouse being alive in the previous seven years, regardless of where in the world the latter happened to be. Again, this change had particular implications for women. Thousands more men than women had been transported to Australia during the preceding decades. From 1828, any letters from, or information about, a transportee meant that a spouse left behind would have no defence to bigamy if they remarried – even if they had waited seven years since they had last set eyes on their transported partner.
In addition, from 1828 onward, only a divorce terminating a marriage, rather than a formal separation, provided a defence. Such divorces were now at least possible, if only by the convoluted and very expensive means of a private Act of Parliament.
A few hundred men succeeded in divorcing their adulterous wives by this means. But only four women succeeded in obtaining a Parliamentary divorce, and each of them had to show that their adulterous husband had behaved particularly badly – for example, by also committing bigamy or incest.
Further reform in 1857 established the new Court for Divorce and Matrimonial Causes. The new process for obtaining a divorce was considerably cheaper, and ‘bigamy with adultery’ was one of the grounds on which wives could divorce their husbands. (A husband only had to show that his wife had committed adultery – a double standard that continued until 1923). Yet despite this new remedy, a spouse’s bigamy did not necessarily mark the end of a marriage. Around one-fifth of bigamists returned to their first spouse after serving their sentence.
The second half of the 19th century also saw the end of transportation. From 1861, bigamy was instead punishable by up to seven years’ penal servitude. Only a few bigamists received the maximum penalty. As previously, sentences tended to be lower and acquittals higher for women. At the Old Bailey, the most common outcome for a woman accused of bigamy was either to be acquitted, or to receive a sentence of less than seven days. And in 1889, the case of Martha Tolson – who had remarried believing her husband to be drowned at sea – led to a major change in the criminal law, confirming that such a belief would be a defence to a charge of bigamy.
The two world wars saw prosecutions for bigamy rising to unprecedented levels. The percentage of women being prosecuted increased particularly sharply, with many of those convicted having been claiming multiple separation allowances in respect of their soldier husbands. Although the number of prosecutions dropped in the 1920s and 1930s, and again in the 1950s, they remained higher than before the First World War, reflecting a more general increase in marital breakdown.
There was a sharp drop in prosecutions in the 1960s as the growing acceptability of non-marital cohabitation meant that individuals whose first marriage had broken down did not feel the need to go through a second ceremony in order to live with a new partner. And from 1971, once a divorce could be obtained on the basis of separation alone, those who might in a previous generation have resorted to bigamy could obtain a divorce and remarry legally.
Today, the ease of obtaining a divorce means that the unhappily married have no need to resort to bigamy. But the absence of divorce was only ever one reason for committing bigamy. Factors such as financial, sexual and emotional exploitation have also played – and continue to play – a key role. And so cases continue to occur.