What is bigamy?

Bigamy is legally defined as intentionally going through a civil marriage ceremony (solemnisation) while already lawfully married to someone else.

It is a common-law crime, inherited from Roman-Dutch law, and remains an offence in Namibia. No fixed statutory penalty is prescribed, leaving sentencing to judicial discretion.

During a civil marriage, parties make a solemn declaration that no lawful impediments exist to their proposed marriage, including an existing marriage.

Where either party is already legally married, the subsequent marriage is void ab initio (invalid from inception).

Consequently, the purported marriage produces no ordinary matrimonial consequences, potentially depriving the second spouse of inheritance and matrimonial property claims.

However, this does not extinguish parental rights and responsibilities towards children born from such a union.

To secure a conviction, the state must establish that a valid first marriage existed and remained legally subsisting when the accused contracted the second marriage.

Section 237 of the Criminal Procedure Act 51 of 1977 facilitates proof through rebuttable presumptions. Proof of the first marriage ceremony raises a presumption of validity unless rebutted. Certified marriage records, whether domestic or foreign, may establish a subsisting marriage.

Evidence of prior cohabitation, recognition of the first spouse and solemnisation may collectively constitute prima facie evidence.

The Marriage Act 14 of 2024, although not yet commenced, introduces preventative safeguards requiring intending spouses to notify the registrar general of the Ministry of Home Affairs and Immigration before marrying, thereby strengthening measures against bigamy.

– Compiled by the Legal Assistance Centre

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