Penal Code § 281 PC is the California law that prohibits bigamy. To put it simply, bigamy is when you marry one person while you are still married to someone else.
The language of the statute reads that:
281. (a) Every person having a spouse living, who marries or enters into a registered domestic partnership with any other person, except in the cases specified in Section 282, is guilty of bigamy.
(b) Upon a trial for bigamy, it is not necessary to prove either of the marriages or registered domestic partnerships by the register, certificate, or other record evidence thereof, but the marriages or registered domestic partnerships may be proved by evidence which is admissible to prove a marriage or registered domestic partnership in other cases; and when the second marriage or registered domestic partnership took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.
In California, bigamy is a crime. In fact, it is what is known as a “wobbler” in California law.2 This means that the offense may be prosecuted as either
- a California misdemeanor, with a maximum county jail sentence of one (1) year, or
- a California felony, with a maximum state prison sentence of three (3) years,
at the prosecutor’s discretion.3
Plus, if you are not a U.S. citizen, you may face serious immigration consequences for a bigamy conviction—because bigamy is considered a “crime involving moral turpitude.”4But with the help of an experienced California criminal and immigration attorney, you can fight bigamy charges—possibly using one of the following common legal defenses:
- You reasonably believed that your first marriage was no longer valid;5 or
- There is insufficient evidence that you are actually guilty of bigamy.
In order to help you better understand the California crime of bigamy, our California criminal defense attorneys will address the following:
- 1. The Legal Definition of Bigamy Penal Code 281 PC
- 2. Penalties for Bigamy in California Penal Code 283
- 3. Legal Defenses to Bigamy Charges
- 4. Bigamy and Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. The Legal Definition of Bigamy Penal Code 281 PC
The legal definition of bigamy in California is:
- Marrying one person,
- While you have a husband or wife who is still living and to whom you are still married.6
That’s all! It does not matter whether:
- You have tried to divorce your first spouse,
- You are separated from your first spouse,
- Your first marriage occurred in a different state or country, or
- Your first spouse is okay with you marrying someone else.
Example: Matt and Sheryl elope when they are 18.Within a year they have decided that the marriage is not meant to last. So they move into separate apartments and go their separate ways—without ever formally filing for divorce.Ten years later, Matt meets Luisa. They fall in love and decide to get married. Sheryl, who has remained friends with Matt, is a guest at their wedding.But Matt’s marriage to Luisa is void—AND he is guilty of the California crime of bigamy. Remarkably, he could go to jail for this “victimless crime.”
1.1. Bigamy law exceptions
The only exceptions to the above legal definition of bigamy are:
- You are not guilty of bigamy if your first marriage has been pronounced void, annulled, or dissolved by the judgment of a competent court;
- You are not guilty of bigamy if your first spouse has been absent for five (5) successive years, and during that time you have not known for a fact that s/he is still alive;7 and
- You are not guilty of bigamy if you actually and reasonably believe that your first marriage has been dissolved.8
Here are some examples illustrating how these exceptions would work (or not work) in real life:
Example: Todd and Elizabeth are members of a New Age cult. They decide to get married.So they get a marriage license from the state of California, and also have a marriage ceremony performed by a priest of their cult.A few years later Elizabeth gets involved with Ara, who is also a member of their cult. She and Todd ask the priest to perform an “annulment” ceremony which is recognized within their cult. They do not, however, file for legal divorce.If Elizabeth then tries to marry Ara, she will be guilty of the crime of bigamy. This is because, even though she and Todd dissolved their marriage within their religion, they did not dissolve their legal marriage in a court.
Example : Sue’s husband Bud is out of work and emotionally unstable. One day he disappears, leaving Sue to support their four children by themselves.Sue contacts Bud’s relatives, but they do not know where he has gone. She reports him as a missing person to the police, but they are unable to find him. She doesn’t hear from him again.Seven years later, Sue meets Jack, and he asks her to marry him.Sue can marry Jack without violating California’s bigamy law—because her first husband has been absent for more than 5 years and she has had no reason to believe he is still alive during that period.
Example : While Tony is on a work assignment in Russia, he meets Oksana, a Russian woman. The two of them get married in Russia after they have known each other only a few months.Then Tony is forced to go back to America for work reasons. Oksana, who doesn’t want to leave her friends and family, stays behind in Russia.A year later Oksana emails Tony to tell him she has met someone else and wants a divorce. She promises that she will take care of getting them officially divorced in Russia. But in reality she does not do so.There is a good chance that Tony will NOT be guilty of Penal Code 281 bigamy if he then marries someone else. This is because he reasonably believed that his Russian marriage had been dissolved.
1.2. Proving a bigamy charge
Proving whether two people are married—and thus whether someone is guilty of bigamy—can occasionally be complicated. This is often the case where the first marriage occurred somewhere other than the United States.
Under Penal Code 281, the prosecutor can prove a previous marriage without necessarily producing the marriage certificate or other legal document.9For example, s/he may be able to prove a marriage based on the testimony of the first spouse, someone who claims to have performed the ceremony or seen the certificate, etc.
2. Penalties for Bigamy in California Penal Code 283
Under Penal Code 283 PC, bigamy is what is called a “wobbler.” This is a crime that may be charged as either a misdemeanor or a felony.10The choice between misdemeanor and felony charges for bigamy is left to the prosecutor. S/he usually decides based on:
- The circumstances surrounding the charges, and
- The defendant’s criminal history.
If you are charged with bigamy as a misdemeanor, the potential penalties include:
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).11
And if you are charged with felony bigamy under Penal Code 281 & 283, the potential penalties are:
- Felony (formal) probation;
- Sixteen (16) months, two (2) years or three (3) years in California state prison; and/or
- A fine of up to ten thousand dollars ($10,000).12
2.1. Immigration consequences of a bigamy conviction
Bigamy has traditionally been considered a “crime of moral turpitude” in California.13This means that defendants who are not U.S. citizens may face adverse consequences for their immigration status if they are convicted of California Penal Code 281 bigamy.Specifically:
- You may face deportation if you are convicted of California bigamy within five (5) years of being admitted to the U.S.;14
- You may face deportation if you are convicted of California bigamy when you already have a conviction for another “crime involving moral turpitude” on your record;15 and
- You will be deemed “inadmissible” for only one bigamy conviction, no matter when it occurs. Being “inadmissible” means that you cannot re-enter the country after leaving, become a U.S. citizen, or apply for a green card.16
Example: Ashish was born in a small town in India. At the age of 16 he marries his second cousin in an arranged marriage.When he is 20 he comes to California to go to college, leaving his wife behind. He ends up staying and working at a software company as a legal immigrant. He hears from relatives that his wife has a new common-law husband in India.Not knowing about California bigamy laws, Ashish marries a co-worker in America. Eventually he is charged with bigamy.Ashish is tempted to plead guilty, since it seems as if the prosecutor is willing to sign a deal giving him only misdemeanor probation.But then he consults a criminal and immigration lawyer and learns that this conviction will make him inadmissible. This means it could prevent him from becoming a U.S. citizen or re-entering the country after leaving.So Ashish and his attorney decide to fight these charges.
3. Legal Defenses to Bigamy Charges
Bigamy charges can seem clear-cut—but in fact many bigamy cases are complicated.As a defendant, you can turn this complication to your advantage with the help of a skilled criminal defense attorney—because a California jury may not convict you of this offense unless they are certain beyond a reasonable doubt that you are guilty.Some legal defenses that may help you beat California Penal Code 281 charges include:You reasonably believed your first marriage had been dissolvedAs we discussed above, actual and reasonable belief that you are no longer married to the first spouse is a valid defense to bigamy charges.17According to Pasadena criminal defense attorney Neil Shouse18:
“California courts recognized a long time ago that people should not be convicted of bigamy if they didn’t know that their first marriage was still in effect. A lot of bigamy cases I see arise out of misunderstandings, plain and simple. There’s often an inter-cultural or international angle as well. If a defendant was under the impression that s/he was no longer married to the first spouse, then s/he should not be found guilty of bigamy.”
The evidence is insufficientYou cannot be convicted of bigamy unless the prosecutor can prove that you are still validly married to your first spouse.If the marriage occurred outside California—and particularly if it occurred outside the United States, as in many bigamy cases—this may not be straightforward. A “smoking gun” like a marriage certificate may not be available.If this is the case, you can challenge the prosecutor’s evidence as insufficient to prove you committed this offense.
4. Bigamy and Related Offenses
There are a few other California crimes that you can commit by marrying someone. These are:
4.1. Penal Code 285 incest
You commit the crime of incest in California (Penal Code 285 PC) if you either:
- marry, or
- have sexual intercourse with,
certain relatives.19The family relationships to which California incest laws apply are:
- Half-siblings; and
- Uncle/niece or aunt/nephew.20
Incest is always a felony in California. The potential prison sentence is sixteen (16) months, two (2) years or three (3) years—the same as for felony bigamy.21
4.2. Penal Code 284 marrying the wife or husband of another
California Penal Code 284 PC defines the crime of marrying the husband or wife of another. Basically, you commit this crime if you marry the person who is committing bigamy.22Marrying the husband or wife of another is a felony, carrying the same prison sentence as California bigamy.23
For questions about the crime of Penal Code 281 bigamy in California, or to discuss your case confidentially with one of our California criminal defense and immigration attorneys, do not hesitate to contact us at Shouse Law Group.We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Penal Code 281 PC – Bigamy.
- Penal Code 283 PC – Bigamy penalties. (“Bigamy is punishable by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment in a county jail not exceeding one year or in the state prison.”)
- Same. See also Penal Code 18 PC. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony [including felony bigamy] is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)
- People v. Vogel (1956) 46 Cal.2d 798, 804. (“The severe penalty imposed for bigamy, the serious loss of reputation conviction entails, the infrequency of the offense, and the fact that it has been regarded for centuries as a crime involving moral turpitude, make it extremely unlikely that the Legislature meant to include the morally innocent to make sure the guilty did not escape.”)
- Same, at 801. (“We have concluded that defendant is not guilty of bigamy, if he had a bona fide and reasonable belief that facts existed that left him free to remarry. As in other crimes, there must be a union of act and wrongful intent. So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication. Sections 281 and 282 do not expressly exclude it nor can its exclusion therefrom be reasonably implied.”)
- Penal Code 281 PC – Bigamy, endnote 1, above.
- Penal Code 282 PC – Bigamy law exceptions. (“Section 281 does not extend to any of the following: (a) To any person by reason of any former marriage whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living. (b) To any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court.”)
- People v. Vogel, endnote 5, above.
- Penal Code 281 PC – Bigamy. (“(b) Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but the marriages may be proved by evidence which is admissible to prove a marriage in other cases; and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.”)
- Penal Code 283 PC – Bigamy penalties, endnote 2, above.
- Same.See also Penal Code 672 PC. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)
- See endnote 3, above.
- People v. Vogel, endnote 4, above.
- Immigration & Nationality Act (“INA”) 237(a)(2)(A). (“(i) Crimes of moral turpitude [one category of deportable crime]. Any alien who– (I) is convicted of a crime involving moral turpitude [such as bigamy] committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. (ii) Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.”)
- INA 212(a)(2)(A)(i)(I) [inadmissible crimes]. (“(2) Criminal and related grounds (A) Conviction of certain crimes (i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of– (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . ,”)
- People v. Vogel, endnote 5, above.
- Our Pasadena criminal defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings, defending a variety of California crimes including bigamy.
- Penal Code 285 PC – Incest. (“Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.”)
- Family Code 2200 – Family relationship defined for California incest law. (“Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.”)
- Penal Code 285 PC – Incest, endnote 19, above.
- Penal Code 284 PC – Marrying the husband or wife of another. (“Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the provisions of this chapter, is punishable by fine not less than five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170.”)
- Same. See also Penal Code 1170(h) PC. (“Penal Code 1170(h) – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)