Cultural Divorce, Part IX: Understanding and litigating bigamy

In California, bigamy results from fraud or mistake. It is fraudulent if the existing marriage is undisclosed. It could also be the product of an innocent mistake: believing that the first spouse is dead or rushing into a second marriage with the impression that the first has legally ended. This is not the case in a cultural setting. Worldwide, bigamy is a response to surviving and obtaining the necessities of life. For men, it is allowed for cause if they can financially afford it. It is a different story for women: Bigamy is a forced and resentful joining or staying in a shared marriage where living as a single unmarried woman is unsafe or impossible.

For Wife‑1, the one who is expected to make room in the bed and beyond, it happens as a conviction for a crime not committed: incurable physical or mental illness, loss of conjugal or procreative ability, blindness in both eyes, or other reasons. For Wife‑2, the one who is invited to join the shared bed and beyond, it occurs under two circumstances: 1) Being widowed or divorced without means to be self-supporting, or 2) Being underage and helpless in what may be called the Trojan Horse marriage. A marriage negotiated by a father or grandfather as guardian (Valy) – to benefit others. The common denomination in all bigamous marriages is a lack of consent by the female victims. But for many women, sharing the lifeboat of bigamy is better than sinking into the abyss of poverty, sexual abuse, and prostitution. It is a trade‑off between the relative safety of a bigamous marriage versus the danger of being a single woman.

Limitations on bihamous marriages

Bigamy is currently permitted in about 25% of countries, mainly in the Middle East, Africa, and Asia. In Islamic countries, it is unopposed due to religious beliefs. In non-Islamic countries, bigamy is tolerated among the Muslim population for political purposes. Regardless of the motive, bigamous marriages are subject to increasingly legal and procedural limitations to prevent the abuse of women. Oversight includes but is not limited to verifying the husband’s financial ability to maintain more than one family, an order of a Court, consent, right of divorce by the prior spouse, and equal treatment of spouses during the marriage.

The following limitations and restrictions apply to bigamous marriages in different cultures and jurisdictions and are for illustration only. It is not intended to be exhaustive:

1. Universal: In permitting the second marriage by the court, the following four considerations are universal: a) Consent by the first wife, b) The right of the first wife to seek a divorce, c) Proof of financial ability to maintain multi‑families, d) Equal treatment of all spouses.

2. Nationality: Some countries deny bigamous marriage to foreign citizens unless authorized by the law of their citizenship. Under Iranian law, foreign citizens are subject to the status law of their own countries. Practice pointer: A bigamous marriage of an American citizen in Iran is invalid under Iranian law because it is void here.

3. Religion: In countries with multi-religious populations, bigamy may be allowed for specific religious populations. In the Philippines, bigamy is allowed for the Muslim minority only. Bigamy is not allowed in Iran for Jewish, Christian, or Armenian minorities.

4. Numeric limitation: Two wives in non-Islamic jurisdictions. Up to four permanent marriages under Sharia law. No limitations in temporary marriages if allowed.

5. Consent or cause: Globally, consent of the existing wife is a prerequisite for granting permission for multiple marriages. Under the circumstances, some jurisdictions allow remarriage for cause and without the existing wife’s consent. The Iranian Family Support Law of 1974, Article‑16, provides that a man cannot take a second wife with a woman except in the following cases: 1) The consent of the first wife. 2) Inability to perform marital duties. 3) Disobedience to her husband. 4) Insanity or incurable diseases. 5) Conviction to five years in jail. 6) Harmful addiction. 7) Abandoning the family. 8) Infertility. 9) Untraceable absence for five years.

6. Unequal division of assets: Some jurisdictions impose unequal ownership of marital property between multiple wives. Indonesia is the most populated Islamic country in the world, authorizing bigamous marriages with limitations. Article 65 of the Marriage Act of 1974 provides that all wives have equal rights to the joint property acquired during their respective marriages, but in practice, the second and subsequent wives do not have joint property rights during the time of marriage.

7. Penalty: Some jurisdictions provide special assessments as a condition of permission for remarriage. Morocco Civil Code Article 45 provides that the court may order the husband to pay the marital share and support of the existing wife and children as a condition of the second marriage within seven days. Failure to do so is considered a withdrawal of the polygamy authorization petition.

California Treatment

F.C. Section 308 provides that “A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California.” This code section is limited by F.C. Section 2201, which dictates ... A subsequent marriage contracted by a person during the life of his or her former spouse with a person other than the former spouse is illegal and void. In addition, California Penal Code 281 (b) expands the illegality to cohabitation as husband and wife here if the second marriage or registered domestic partnership took place out of this state. Penal Code 283 makes bigamy punishable by no more than ten thousand dollars ($10,000) or imprisonment in a county or state prison.

The following cases help to understand and apply California’s bigamy policy:

Estate of Dalip Singh Bir, 83 Cal. App.2d 256(1948): “Public policy” against bigamy is raised only if the decedent had attempted to cohabit with his two wives in California. Where only the question of descent of property is involved, “public policy” is unaffected.

Rediker v. Rediker et al., 35 Cal.2d 796, 1950: Public policy requires the preservation of the second bonafide marriage and the protection of the rights of the second spouse.

Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613 (Cal. 1957): Husband who arranged for the bigamous Mexican marriage is estopped from raising invalidity as a defense against California divorce.

Estate of Vargas, 36 Cal.App.3d 714 (Cal. App. 1974): An innocent participant in a California void bigamous marriage acquires the putative spouse status.

Irmo Seaton, 200 Cal.App.4th 800, 133 Cal.Rptr.3d 50 (2011): Under Nevada and California law, a bigamous marriage is void from its inception, even if it has not been declared void by a court.

Irmo Elali and Marchoud, 79 Cal.App.5th 668 (2022): Lebanese bigamous marriage was void under F.C. Section 2201(a) and Penal Code Section 281, Wife is not a putative spouse.

Culturally Speaking: Provides a step-by-step blueprint for more tolerable and lasting cultural divorces. It benefits partially from more than five decades of studies by its author in two legal systems.