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
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