Virginia Bigamy Law: A Crime in Two Marriages

What constitutes bigamy in Virginia?

Bigamy occurs when a married individual marries another person. Bigamy is subject to prosecution as either a felony (Va. Code § 18.2-362) or a misdemeanor (Va. Code §§ 20-38.1 to 20-40) as follows:

“If any person, being married, shall, during the life of the husband or wife, marry another person in this Commonwealth, or if the marriage with such other person take place out of the Commonwealth, shall thereafter cohabit with such other person in this Commonwealth, he or she shall be guilty of a Class 4 felony. Venue for a violation of this section may be in the county or city where the subsequent marriage occurred or where the parties to the subsequent marriage cohabited.”  Va. Code § 18.2-362

“(a) The following marriages are prohibited: (1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties . . .” Va. Code § 20-38.1

“If any person marry in violation of § 20-38.1 he shall be confined in jail not exceeding six months, or fined not exceeding $500, in the discretion of the jury . . .”  Va. Code § 20-40.

The Amelia County Commonwealth’s Attorney’s Office convicted a defendant of felony bigamy when he: (i) married one woman in 1995, (ii) never divorced her, and (iii) married another woman in 2005.  The defendant argued on appeal that he could not be convicted of having multiple marriages because his second marriage was void ab initio under Va. Code § 20-43.  In other words, he could not be convicted of having two marriages if the second marriage never existed in the first instance under Va. Code § 20-43 (“All marriages which are prohibited by law on account of either of the parties having a former wife or husband then living shall be absolutely void, without any decree of divorce, or other legal process.”).  It was simply a legal impossibility for anyone to be convicted for felony bigamy so long as bigamous marriages were defined as void ab initio.

The Virginia Court of Appeals upheld the conviction on appeal in Cole v. Commonwealth, 712 S.E.2d 759, 2011 Va. App. LEXIS 255 (2011).  The Virginia Court of Appeals found the defendant’s argument too clever by half.  It held that the second marriage is still illegal despite the fact that it is treated as if it does not exist.  In fact, its illegality is precisely why it is treated as if it does not exist.  The Virginia General Assembly would surely not engage in the “manifest absurdity” of enacting a completely useless law.

This decision is worth highlighting for at least two reasons.  First, it provides an additional illustration of the fact that the Virginia appellate courts will continue to “fix” the Virginia General Assembly’s drafting errors.  Second, it reminds us that bigamous marriages can cause a great deal of harm to the second spouse.  Indeed, the second spouse cannot receive spousal support or a share of the marital property per an equitable distribution precisely because there was no marriage in the first instance that would grant the trial court authority to do so.  See, e.g., Kleinfield v. Veruki, 7 Va. App. 183; 372 S.E.2d 407 (1988); Wallace v. Kilgore, 68 Va. Cir. 40 (2005) (Spotsylvania Cty.).  Considering that there is essentially a complete dearth of reported caselaw indicating that restitution is adequately available to the second spouse in a criminal prosecutions for bigamy or that equitable estoppel is adequately available to protect the second spouse in a civil case, can we really expect a criminal prosecution for bigamy to ever properly provide compensation to the second spouse who missed out on years of education, training and skills needed to earn on his/her own or likewise missed out on his/her other spouse’s savings, investment, retirement accounts, etc., all funded with marital funds but held entirely in the other spouse’s name?  Why is there not an independent civil remedy that would allow the aggrieved spouse some form of compensation akin to an actual divorce?