Bigamy is the entering into of the marriage contract by a party already having a legal wife or husband, alive or undivorced.15

The elements of bigamy are those of a legal first marriage, not dissolved by either death or divorce, followed by a second marriage. Divorce before the second marriage is contracted,16 would be a good defense to a prosecution for bigamy. For matters relating to Divorce, see the following chapter. After the death of either party, the survivor has the full right to marry again.

13 Baker vs. Baker, 13 Cal., 87; Rit-ter vs. Ritter, 5 Blackf., 81; Reynolds vs. Reynolds, 3 Allen, 605; Morris vs. Morris, Wright, 630; Carris vs. Carris, 24 N. J. Eq., 516; Sissung vs. Sissung, 65 Mich., 680.

14 Todd vs. Todd, 149 Pa. St., 61.

15 Bigamy being a statutory offense makes it difficult to frame any satisfactory general definition.

16 Baker vs. People, 2 Hill, 325.

The presumption of death was raised by an absence for seven years at common law, by an absence for five years in Illinois, and for similar periods in other states. To have this effect, however, no communication must have been received during this period, either of or from the absent party.

The death of the first husband or wife, before proceedings to avoid second marriage will not render such second marriage valid, unless it was entered into after the first husband or wife had been absent for the period required to raise the presumption of death.

The law will always make such presumptions of facts as will tend to uphold the innocence of the parties or the legitimacy of children. In the case of the marriage of a party having a former husband or wife living, the law therefore will presume that the parties to such first marriage had been divorced. This presumption is, of course, open to rebuttal. A bigamous marriage is void.17