Can you be prosecuted for bigamy if you enter into common-law marriage-like polyamorous situation?

Question

As far as I know, bigamy is illegal (and you can be prosecuted for it) anywhere in USA.

Now, imagine that a polyamorous throuple (3 people in a relationship) is formed, and acts, in perfect unison (e.g. all 3 move in together on the same day, etc...), and all 3 members act in a way which fits fully into a state's common-law marriage rules.

In that case, can the 3 participants be prosecuted for bigamy? Because technically, every one of the three, is in a provable common-law marriage with two people at the same time.

Please note that this can't be "lawyered out of" by arguing that one of the two "common law" marriages is invalid because it was entered into later; since everything all 3 do is in synchrony, at the same time. Either all 3 are common-law married, or none of them is, unless somehow the law says you can roll dice and arbitrarily pick 2 people out of 3 and their bond is a valid common-law marriage and the other two sides of the triangle aren't valid with no tangible reason for why.

Answer 1

There is variation from state to state, and this is overwhelmingly a matter of state law (or the equivalent in places outside a U.S. state but within the U.S. like Puerto Rico, the District of Columbia, the U.S. Virgin Islands, Guam, American Samoa, the Northern Mariana Islands).

Some states ban cohabitation purporting to be as spouses, other states merely ban applying for a marriage license when you are already legally married.

For example, Colorado's bigamy laws are as follows:

Colorado's Revised Statutes provide at § 18-6-201, entitled "Bigamy" that:

(1) Any married person who, while still married, marries or cohabits in this state with another commits bigamy, unless as an affirmative defense it appears that at the time of the cohabitation or subsequent marriage:

(a)The accused reasonably believed the prior spouse to be dead; or

(b) The prior spouse had been continually absent for a period of five years during which time the accused did not know the prior spouse to be alive; or

(c) The accused reasonably believed that he was legally eligible to remarry.

(2) Bigamy is a class 6 felony.

Then, it provides in § 18-6-202 entitled "Marrying a bigamist" that:

Any unmarried person who knowingly marries or cohabits with another in this state under circumstances known to him which would render the other person guilty of bigamy under the laws of this state commits marrying a bigamist, which is a class 2 misdemeanor.

And, finally, it provides in § 18-6-203, entitled "Definitions" that:

As used in sections 18-6-201 and 18-6-202, "cohabitation" means to live together under the representation of being married.

This statute would probably criminalize the relationship contemplated in the question.

But, not all state bigamy laws are so broad.

Utah's bigamy statute is narrower. It states

Effective 5/4/2022

76-7-101. Bigamy -- Penalty -- Defense.

(1) An individual is guilty of bigamy if:

(a) the individual purports to marry another individual; and

(b) knows or reasonably should know that one or both of the individuals described in Subsection (1)(a) are legally married to another individual.

(2) An individual who violates Subsection (1) is guilty of an infraction.

(3) An individual is guilty of a third degree felony if the individual induces bigamy:

(a) under fraudulent or false pretenses; or

(b) by threat or coercion.

(4) An individual is guilty of a second degree felony if the individual:

(a) cohabitates with another individual with whom the individual is engaged in bigamy as described in Subsection (1); and

(b) in furtherance of the conduct described in Subsection (4)(a), commits a felony offense, or for Subsection (4)(b)(xiii), a misdemeanor offense, in violation of one or more of the following:

(i) Section 76-5-109, child abuse;

(ii) Section 76-5-109.2, aggravated child abuse;

(iii) Section 76-5-109.3, child abandonment;

(iv) Section 76-5-111, abuse of a vulnerable adult;

(v) Section 76-5-111.2, aggravated abuse of a vulnerable adult;

(vi) Section 76-5-111.3, personal dignity exploitation of a vulnerable adult;

(vii) Section 76-5-111.4, financial exploitation of a vulnerable adult;

(viii) Chapter 5, Part 2, Criminal Homicide;

(ix) Section 76-5-208, child abuse homicide;

(x) Chapter 5, Part 3, Kidnapping, Trafficking, and Smuggling;

(xi) Chapter 5, Part 4, Sexual Offenses;

(xii) Section 76-7-201, criminal nonsupport;

(xiii) Section 76-9-702.1, sexual battery;

(xiv) Title 77, Chapter 36, Cohabitant Abuse Procedures Act; or

(xv) Title 78B, Chapter 7, Part 8, Criminal Protective Orders.

(5) It is a defense to prosecution under Subsection (2) that:

(a) the individual ceased the practice of bigamy as described in Subsection (1) under reasonable fear of coercion or bodily harm;

(b) the individual entered the practice of bigamy, as described in Subsection

(1), as a minor and ceased the practice of bigamy at any time after the individual entered the practice of bigamy; or

(c) law enforcement discovers that the individual practices bigamy, as described in Subsection (1), as a result of the individual's efforts to protect the safety and welfare of another individual.

This statute would probably not apply to the situation in the question.

Answer 2

canada

Canada's criminal prohibition on bigamy is not about common-law partners:

290 (1) Every one commits bigamy who ... in Canada, (i) being married, goes through a form of marriage with another person, (ii) knowing that another person is married, goes through a form of marriage with that person, or (iii) on the same day or simultaneously, goes through a form of marriage with more than one person.

And the prohibition on polygamy is also not about mere common-law partnerships:

293 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who... practises or enters into or in any manner agrees or consents to practise or enter into any form of polygamy or any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage

While common-law partnerships are conjugal relationships, they are not conjugal unions. See the Polygamy Reference, paras. 1020, 1036-1037:

In my view, it is clear that the offence created in ss. 293(1)(a) is premised on some form of sanctioning event because the status prohibited by the section - “polygamy” and “any kind of conjugal union with more than one person at the same time” - both have at their core, as I have discussed, “marriage” (whether or not recognized as legally binding). And “marriage” has at its core the voluntary joining of two individuals with the requisite intent to “marry” and the recognition and sanction by the couple’s community. I have previously noted that a sanctioning event of some formality is contemplated by s. 293.

...

From all of this, I conclude that properly interpreted, s. 293(1)(a) prohibits practicing or entering into a “marriage” with more than one person at the same time, whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage.

The offence is not directed at multi-party, unmarried relationships or common law cohabitation, but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages.

The simultaneity in your scenario does not affect the analysis whatsoever. A common-law partnership is not initiated by a marriage or form of marriage, even though the relationship is marriage-like.

Answer 3

france

Official, state-sanctioned marriage requires two persons (article 143 of the civil code). If you somehow manage to marry two persons at the same time, the second marriage is legally void (article 147); it is unlikely that the state will care much about it, unless you try to take advantage of the tax or inheritance effects of marriage, in which case the standard administrative fraud statutes apply.

The closest thing to "common law marriage" is concubinage. It is mostly a creation of case law with fairly limited legal effects. The question is then how does a "throuple" differ from a couple in that regard; I think, not much:

• unlike marriage, concubinage creates no tax or inheritance legal effects.
• labor-type claims of the sort "X helps out Y’s business for free / pays out the house expenses; X and Y have a falling out; X demands payment for the work done" are usually denied. Such work/expenses would be deemed to be customary help extended within a concubinage relationship (i.e. essentially a gift), see for instance Chambre civile 1, 20 janvier 2010, 08-13.200. That reasoning seems easy to extend to more-than-two-persons cohabitation arrangements.
• for family law, the child’s interests and the de facto situation is what matters. For instance, if a child was raised by two parents, the court will usually grant shared custody, even if one of the parents was "off the legal books". In the typical divorce with a custody fight, other persons who contributed to the child’s education (e.g. grandparents, uncles, etc.) are in the same "camp" as either parent, so there are two parties; but I do not see why three or more parties would be exceptionally difficult to deal with, from a legal point of view.
• social security might be the trickiest area. Healthcare insurance coverage often extends to partner, children etc.; it seems likely that providers would deny coverage for multiple partners, and with good reason (it is more expensive to cover two people than one). I would guess the provider has to cover one of the partners, though.

Now, one can find a statutory definition of concubinage at article 515-8 of the civil code: "a de facto union, where two persons of same or opposite sex live as a couple in a stable and continuous cohabitation". "Two" persons, that would exclude throuples; does this mean we can throw away the previous case law as inapplicable?

I do not think so, based on historical context. This article was created by a 1999 law which instituted the "civil partnership", a sort of "cheap marriage" that could be taken by same-sex couples, at a time where same-sex couples were denied the (basic) protections of concubinage by the courts. (*) Based on legislative intent, that article aimed to extend the definition of concubinage to same-sex couples, not to restrict it to couples.

(*) Source: impact study of the 2012 law for same-sex marriage, citing Chambre sociale, du 11 juillet 1989, 86-10.665 as well as "Civ. 3e, 13 décembre 1997". I could not track down the latter citation (the lack of case number is typical of old citations but not helpful). The former deals with a law allowing to claim healthcare coverage from one person’s social security when one is under "marital life" and at the charge of that person; the court denies the claim because although the "friend" (my scare quotes) checks the other boxes, "marital life" requires the ability to contract marriage and therefore (pre-2012) a man-woman couple.

Answer 4

No

australia

s94 of the Marriage Act 1961 says:

(1) A person who is married shall not go through a form or ceremony of marriage with any person.

What matters is the ceremony, not the living arrangements.

Answer 5

and all 3 members act in a way which fits fully into a state's common-law marriage rules.

You mean except for the rule that a marriage is between two people?

The relationship you describe is simply inconsistent with marriage because it is not a relationship between two people, but a relationship amongst three.

There would also be the question of what relationship the community regarded the three as having.

If they were regarded as a throuple, then they cannot be married. And if they were not regarded as a throuple, but as three people having varying and unstable relationships amongst themselves, then they cannot be married.

A marriage could only arise between any two if other people knew it as a marriage-like relationship.

Another implication of this is that marriages cannot arise in private. The relationship must be known within a community of people to which the spouses are attached.

If the marriage is not known to a community, or if there is no community of people to which the pair are attached and which could know the marriage, then there cannot be a marriage.