Bigamy and Illegal Marriages (Art. 217 CP) in Spain: Criminal Defence

The offence of bigamy and, more broadly, the illegal marriages set out in Articles 217 to 219 of the Spanish Criminal Code are among the most underused yet most complex figures of Spanish criminal law. Globalisation, marriages celebrated abroad and the plurality of matrimonial regimes turn these proceedings into genuine legal puzzles combining criminal law, private international law and consular law. As criminal defence lawyers, we analyse the offence, the most effective defences and recent developments.

What Is Bigamy? Legal Definition of Art. 217 CP

Article 217 punishes with prison of 6 months to 1 year anyone who enters into a second or further marriage, knowing that the previous one legally subsists. It is an offence of mere activity: it is committed by the sole celebration of the new marriage. The protected legal interest is the legal system of monogamy and matrimonial public faith, not conjugal fidelity (which belongs to the civil sphere).

The essential elements are three:

• A pre-existing marriage bond valid in Spain. If the previous marriage was declared void before the second, there is no bigamy.
• Celebration of a second marriage with legal effect. A merely religious union without registration does not, in itself, constitute a second marriage for criminal purposes.
• Knowledge (intent). The offender must know that the previous marriage subsists. An error as to the dissolution can eliminate intent and therefore criminal liability.

Bigamy and Marriages Celebrated Abroad

This is where the greatest practical casuistry lies. When a foreign national resident in Spain celebrates a second marriage in their country of origin (in legal systems where it is lawful), the key question arises: is it an offence in Spain?

The case law of the Second Chamber of the Supreme Court holds that it is where the following factors concur: (i) the first marriage is registered in the Spanish Civil Registry; (ii) the offender is habitually resident in Spain when celebrating the second marriage; (iii) they seek to give the new bond legal effect in Spain. If the second marriage is confined to the foreign sphere and never invoked in Spain, criminal prosecution is more difficult.

Forced Marriages: the Connection With Art. 172 bis CP

Organic Law 1/2015 introduced Article 172 bis to specifically punish forced marriage, with penalties of 6 months to 3 years and 6 months in prison. The typical conduct is compelling another person, through serious intimidation or violence, to enter into marriage. Penalties increase where the victim is a minor or where the offence is carried out by moving the victim abroad.

Other Illegal Marriages: Arts. 218 and 219 CP

• Void marriage to harm the other party (Art. 218 CP): punishes anyone who, for a known cause of invalidity, enters into marriage to harm the other party. Prison of 6 months to 2 years.
• Authority authorising a void marriage (Art. 219 CP): aimed at anyone who, exercising authority functions or as a minister of religion, knowingly authorises a void marriage. Prison of 6 months to 2 years plus suspension of public office.

Criminal Defence Strategies in Bigamy

1. Non-existence or nullity of the first marriage. If the first marriage was void, there is no bigamy.
2. Prior dissolution by divorce or death. Submitting the final divorce judgment or death certificate, duly apostilled.
3. Invincible error as to the subsistence of the bond (Art. 14 CP). Particularly useful in divorces processed abroad whose legal effects in Spain are not obvious.
4. Lack of validity of the second marriage. If the new union was not valid in its jurisdiction, it does not constitute a "marriage" for the purposes of Art. 217.
5. Limitation. The offence of bigamy becomes time-barred after 5 years from its commission.

Civil and Migration Consequences

• Automatic civil nullity of the second marriage. The first marriage subsists.
• A criminal record that hinders obtaining Spanish nationality and may lead to the refusal of residence permits.
• Impact on matrimonial property regimes and inheritance rights.