2nd Marriage Without Divorce - Victoria 1800s

Was it possible to marry a second time without either the death of the first husband or divorce? 

In Victoria, Australia in the late 1800s it was!

The following is an email message received from Ada Ackerly who kindly provided the answer:-

A lady could marry any time after she believed her husband dead, but with risks:-

1.  If she did not make "reasonable" efforts to establish his death, married in under seven years and he returned alive, she had committed a felony and was liable to a prison term for bigamy, and any children born from the second marriage were illegitimate.

2.  If she made "reasonable and diligent" efforts to establish his death, and all evidence available indicated the death most likely to have occurred, she could:-

         (1)  Take the risk and marry under the seven year period.  In this case it might be only a misdemeanor with no imprisonment, or the judges may decide it is a felony and convict if they felt she had not made a reasonable effort to establish the fact of his death.

         (2)  Apply to the court to have his "death presumed".  This unlocked his estate, made her legally a widow and free to marry.  Such estates are marked "prs" (grant made on presumption of death) on the probate index, and may have come before the Equity Jurisdiction of the Supreme Court to appoint trustees of the estate on behalf of the children or the heir-at-law (usually the eldest son).  There may be no note of this on the probate index, only in the Supreme Court Equity Jurisdiction case files.  Of course, he may have had no estate to be managed!

3.  She could make "reasonable" enquiries, allow seven years to elapse, then marry, sure that if he returned, she could only be charged with a misdemeanor.  The two husbands were expected to discuss the situation between themselves without recourse to law.  She could stay married to the second husband and their children would be legitimate if both he & she agreed to maintain the status quo.  The first husband however, could demand the return of his own children.  He could not demand co-habitation, unless the woman decided to leave her second husband and return to him.  If she did so, the second husband could apply to the court to have his marriage declared "null and void" and the children declared his legal offspring, and he would be free to marry as a bachelor.

The above is based on Law Reports in 1863 for a case where the husband, declared dead in a mine accident by a fellow digger in a letter to the wife, returned after five years to find his wife remarried, and is a précis from the statements of the three judges' opinions on the legal situation.

Ada Ackerly, email 29 Nov 2011