Dear Mrs Macaulay,
In August of 2006 I got married to my boyfriend of five years, he also happens to be the father of my son. Three months into the marriage he started being abusive so my son and I moved out. It was during this time that I found out that he was and is still married to someone else who lives in the same parish as we do. The confusion this has caused me is unimaginable, as I do not know if I am still legally married or if I get married again whether I will be committing bigamy. Because of our son and his other children, I do not want to have him sent to prison, but I was told by a clerk of court that this is my only option. Is this in fact true? What remedies would be available to someone in my position? Please help me.
- Sincerely Confused

Dear Sincerely Confused,
Thank you for your letter. I am sorry it has taken this long for me to reply to it, you see my replies have to be done in the order in which I receive the letters from readers. So, it is only now that I have reached yours.
Let me state the facts in your letter as I understand them and formulate your enquiries in the same way. Here goes.

1.You had a boyfriend for five years.
2. He is the father of your son.
3.You and he got married in 2006.
4.After three months of marriage he started being abusive to both you and your son.
5.You left the family home.
6.You then discovered that he was and is still married to another woman living in your parish.
7. You do not wish him go to prison because of his son and his other children.
You wish to know:
1.Whether you are ("still") legally married?
2. If you re-marry, whether you will be committing bigamy?
3.Whether a criminal prosecution is the only means available for dealing with his offence?
4. What remedies are open to you in the circumstances you have related.

This man is clearly a master of deceit, a champion liar. He kept you in the dark about his real status for five years, during which time you had a child together. Then he had you go through a marriage ceremony believing that you thereby became his legal partner.

This man is definitely a bigamist, having without question committed the offence of bigamy. Bigamy is dealt with in the Offences of the Person Act, 1864, in section 71. The offence is committed when a person who is married, marries another person during the lifetime of his or her spouse of the earlier marriage. It matters not whether the second marriage took place in Jamaica or somewhere else in the world. When the act is committed that spouse shall be guilty of a felony and on conviction can be sentenced to a maximum term of four years with or without hard labour.

If your "husband" can prove that he and his first wife had been separated for over seven years and he did not know that she was alive, then he would have a good defence to the charge of bigamy. I do not however see how this defence could work in these circumstances seeing you all live in the same parish - I am concluding that you were the only one who did not know about the continuing existence of his earlier marriage.

I should tell you that even though you do not want him to go to prison, the decision is not really yours. It is for the Director of Public Prosecution (DPP) to decide whether any prosecution should proceed against any citizen who has committed an offence in law. In any event, his conduct is so despicable that he ought to be punished. He showed complete disrespect for you and your child in treating you with deception rather than the truth.
Are you still legally married?

No, you are not, because your marriage was and is void.
Will you commit bigamy if you re-marry?

Without getting a Decree of Nullity it would be legally untidy. Under the Matrimonial Causes Act, 1989, section 4, Decrees of Nullity may be pronounced by the court on the ground that the marriage is void, because one of the parties through the marriage had a husband or a wife living at the time of the marriage.

Is a criminal prosecution the only course open in the circumstances?

No, because you should apply for a Decree of Nullity to be announced in respect of your "marriage" so that you can be clearly unfetted by the illegal act committed by this man against you.

What remedies are opened to you in the circumstances you have related?

You can of course, apply for custody, care and control of your child and for him to contribute to the child's maintenance and for him to have, if any, supervised access (because of his abusive conduct to your child, he should really have none).

It will be up to the State, through the DPP's decision, whether to prosecute him for the crime or not. Generally of course, the women who find themselves in your situation make a report to the police about it and they, after investigating the matter and finding support for the allegation, would arrest and charge the deceiver and take him to court. Thereafter, it would be up to the DPP what happens.

As he was abusive to you and your son, you should also apply for protection orders under the Domestic Violence Act to ensure that he keeps his distance from you both and doesn't get a chance to further abuse.

I hope that I have clarified the position for you, and I am really sorry that you and your child have found yourselves in such a situation and I wish for you courage to act as you should and that you both have a much brighter future.

Margarette May Macaulay is an attorney-at-law and a women's and children's rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025.

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