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Bigamy Laws in California - Penal Code 281 PC

Posted by Dmitry Gorin | May 05, 2023

Bigamy refers to the act of entering into a marriage with someone while already legally married to another person. In California, bigamy is a criminal offense under Penal Code 281 PC.

Simply put, this law makes it illegal to marry one person while you are still married to someone else. The legal definition of bigamy is marrying someone while you have a living husband or wife to whom you are still married.

Bigamy Laws in California - Penal Code 281 PC
PC 281 bigamy laws make it a crime to get married while still married to someone else.

Notably, it does not matter if you are separated from your spouse or have attempted to divorce them. It also does not matter if your current spouse approves of getting married to another person or if your first marriage occurred in another state or country.

PC 281 says, “(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 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.”

Depending on the circumstances of your case, if you're convicted of bigamy in California, you could face up to 3 years in prison. Let's review this state law further below.

Understanding PC 281

For purposes of California law, the crime of bigamy encompasses both legal marriages and domestic partnerships. So when an individual knowingly enters into a marriage or domestic partnership with someone else while still legally married or in a registered domestic partnership with another person, they are guilty of bigamy.

To be convicted of bigamy, the individual must know their current marital or domestic partnership status.

To secure a conviction against you for bigamy under Penal Code 281, the prosecution must prove the following elements beyond a reasonable doubt:

  • You were lawfully married to another person;
  • You were aware that you were still married;
  • You willfully married or entered into a registered domestic partnership with another person while still legally married to the first spouse; and
  • The first spouse was still living at the time.

Other things to know about this law:

  • Under this law, a lawful marriage is a valid marriage entered according to the legal requirements of the jurisdiction where it occurred. Thus, the law applies to any prior legal marriage, regardless of whether it was performed in California, some other state, or anywhere else.
  • Prosecutors don't need to present a registration or certificate to prove bigamy. PC 281 allows prosecutors to prove a prior marriage through other reasonable means, such as testimony from the original spouse, the testimony of the wedding officiant, or proof that the original spouses had cohabitated in California even if they were married in another state;
  • The related crimes for Penal Code 281 PC bigamy are Penal Code 284 PC marring the wife or husband of another and Penal Code PC 285 incest.

What are Exceptions to the Law?

There are instances in which California law exempts a person from prosecution for bigamy. You cannot be convicted of this crime if:

  • Your prior marriage was annulled, voided, or declared invalid by a competent court;
  • You actually and reasonably believed your first marriage was dissolved (i.e., the circumstances were such that a reasonable person would believe it); or
  • Your first spouse has been absent for five years or more when you had no explicit knowledge of whether that person was still living.

What Are Some Examples?

EXAMPLE 1: Todd and Cathy are married by the leader of a religious sect, then one year later, they ask the leader to pronounce the marriage dissolved. The leader does so, but neither Todd nor Cathy legally files for divorce, so their marriage certificate is still on file. Todd remarries someone else. Todd can be charged with bigamy because the prior marriage was only declared void by a religious leader and not by a court.

EXAMPLE 2: Fred and Ethel have been legally married for several years. One day, Fred abandons the marriage, leaving without a trace, and neither Ethel nor Fred's family knows his whereabouts.

Six years later, Ethel meets someone new and marries them, only to have Fred turn up a month later, accusing Ethel of bigamy. Ethel is exempt from prosecution under bigamy laws because Fred was absent for more than five years without indicating whether he was dead or alive.

What Are the Penalties for PC 281?

Bigamy is a "wobbler" offense in California, which means that it can be charged as either a misdemeanor or a felony. The specific circumstances of the case and the defendant's criminal history will determine the severity of the charges.

Penalties for bigamy in California
Bigamy can be charged as a misdemeanor or felony.

If you are convicted of misdemeanor bigamy, the penalties may include:

  • Up to one year in county jail; and
  • A fine of up to $1,000.

If you're convicted of felony bigamy, the penalties may include the following:

  • 16 months, two years, or three years in state prison; and
  • A fine of up to $10,000.

For misdemeanor and felony bigamy convictions, the judge may impose probation as an alternative to jail or prison time.

What Are the Defenses for PC 281?

If you're charged with bigamy under PC 281, a skilled defense attorney can implement one or more valid defenses to fight the charge. Some of the most common defenses are discussed below.

Defenses for Bigamy
Contact our law firm for legal advice.

Perhaps we can argue that you qualify for one of the exceptions. If you can prove that your first marriage was dissolved, that you reasonably believed it was dissolved, or that you had no idea of your prior spouse's whereabouts for the past five years, you can get the charge dismissed.

Perhaps we can argue that your first marriage was invalid. If you can show that your first marriage did not meet the legal requirements for a valid marriage in the jurisdiction where it took place, you are not guilty under PC 281.

Perhaps we can argue that you reasonably believed your first spouse was deceased. This defense requires demonstrating that you genuinely believed your spouse was no longer alive and acted in good faith when entering into a new marriage or domestic partnership.

You can contact us by phone or through the contact form to review the case details. Eisner Gorin LLP is located in Los Angeles, CA.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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