Under certain statutes it is not considered polygamous for an individual to remarry after a certain period of time has elapsed during which the former spouse was absent and thought to be dead. For example, California exempts from its law "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." Cal. Pen. Code § 282. Remarriage before the expiration of the statutory period, however, constitutes polygamy, even if the missing spouse later turns out to be dead, since the first marriage is still regarded as valid until the statutory period lapses.
In some jurisdictions a sincere and reasonable belief that a valid DIVORCE has been granted is a defense to polygamy. In most jurisdictions, however, it is not a defense. It is sometimes said that polygamy is a strict-liability offense because the prosecution need not prove
a criminal intent to obtain a conviction, and defendants may not rely on erroneous legal advice, ignorance, or mistake law as a defense. However, prosecutors are more likely to pursue indictments against persons who knowingly enter into a polygamous marriage than against persons who enter a second marriage under a GOOD FAITH belief that their first marriage has been nullified.
As mentioned above, a person who successfully annuls his or her first marriage before entering a second marriage cannot be prosecuted for polygamy. The same rule applies to persons who successfully have their marriage dissolved by divorce or nullified for any other reason before entering the second marriage. However, a divorce or annulment obtained subsequent to a second polygamous marriage is no defense. Nor will a solemnly held religious belief that it is not unlawful to have more than one spouse serve as a defense to an indictment for polygamy. In affirming the criminal conviction of a Mormon for practicing polygamy, the U.S. Supreme Court rejected the argument that a Utah law prohibiting polygamy violated either the Establishment or Free Exercise Clauses of the FIRST AMENDMENT to the federal Constitution. (Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L. Ed. 244 (1878).
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