Insights

Does Ningbo have illegitimate children count as bigamy

Ningbo Author：LuXu WANG

Ms. Zhang discovered that her husband had fathered a child with another woman outside of their marriage. She believes her husband has committed bigamy and intends to hold him criminally liable. Is this judgment correct? The conclusion is: having an illegitimate child does not necessarily constitute bigamy. The criteria for determining bigamy are “whether a subsequent marriage registration has been completed” or “whether one is cohabiting with another person under the guise of a marital relationship,” rather than “whether children have been born.” The birth of children outside marriage can only prove the existence of extramarital sex and even continuous cohabitation, but in order to constitute the crime of bigamy, it must also be proved that both parties live together in the name of husband and wife. Of course, the fact that children are born out of marriage is not meaningless-it is an important evidence to prove the continuity and stability of the extramarital relationship, and it is also an important bargaining chip to claim damages in the event of divorce.

1. Legal definition of bigamy: two forms and one core criterion

Article 258 of the Criminal Law of the People's Republic of China stipulates: Anyone who has a spouse and commits bigamy, or marries someone knowing that the other person has a spouse, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. Article 1042 of the Civil Code of the People's Republic of China stipulates: Bigamy is prohibited; cohabitation by a person who has a spouse with another person is prohibited.

bigamy contains two forms in the criminal law: first, legal bigamy -- the person who has a spouse goes through marriage registration with others, or even registers marriage with others knowing that others have a spouse; second, de facto bigamy -- the person who has a spouse lives together continuously and stably with others in the name of husband and wife, forming a de facto marriage state. The Supreme People's Court's 1994 "Approval on Whether the Bigamy Cases of Illegal cohabitation in the Name of Husband and Wife after the Implementation of the Regulations on the Administration of Marriage Registration" are Convicted and Punished for the Crime of Bigamy "clarified that a person with a spouse who lives together with another person in the name of husband and wife Should still be convicted and punished as bigamy.

Two criteria need to be repeatedly emphasized:First, the key lies in “living together as husband and wife.”-- openly appear as husband and wife, live together, live together, and appear as husband and wife in social relations; secondly, having children is not equal to bigamy -- illegitimate children can only prove the occurrence of extramarital sex, and one-night stands, adultery, cohabitation but not shown in the name of husband and wife do not constitute bigamy. The dividing line between cohabitation and bigamy lies in whether it is "in the name of husband and wife": cohabitation may not be in the name of husband and wife, while bigamy must be made public in the name of husband and wife.

The evidential value of 2. illegitimate children: does not constitute bigamy, but changes a lot of things

Even if it does not constitute bigamy, the legal significance of having children outside of marriage remains substantial, as evidenced by four key aspects:

  1. Prove the continuous stability of extramarital relationship: procreation needs the support of long-term and stable extramarital relationship. This fact can prove that "a spouse cohabiting with others", and "cohabiting with others" is the legal fault situation stipulated in the second item of Article 1091 of the Civil Code.
  2. Support the claim of compensation for damages: long-term extramarital affairs and giving birth to children, if the circumstances are bad, even if it does not constitute bigamy, it may be identified as "having other major faults" (Article 1091, Item 5 of the Civil Code), and the innocent party may claim compensation for damages.
  3. Facilitating the determination of marital breakdown: Having a child outside of marriage is generally sufficient to demonstrate that the marital relationship has irretrievably broken down, thereby helping the faultless party obtain a divorce judgment in the first lawsuit.
  4. On the relationship between parentage and child support: The establishment of the parent–child relationship, child support obligations, and inheritance rights in cases involving illegitimate children are distinct legal issues that are independent of the determination of the crime of bigamy and may be addressed separately.

On the contrary, if you only want to prove "bigamy", it is far from enough to submit only the birth certificate of children-the evidence of "living together in the name of husband and wife" is also needed: the chat records and social content commensurate with the husband and wife, the proof of neighbors living together, the record of participating in activities as husband and wife, the photos and videos of living together, the testimony of relatives and friends, etc.

3. Civil Consequences and Criminal Prosecution: Two Parallel Paths

The legal consequences arising from the birth of a child outside marriage span both civil and criminal law, and must be addressed separately:

Civil level: First, compensation for divorce damages-the spouse can claim compensation for damages according to Article 1091 of the Civil Code, and bigamy or cohabitation with others is a legal situation; Second, economic compensation-if the innocent party undertakes more housework and assists the other party in the family (such as raising children and taking care of the elderly), economic compensation can be claimed in accordance with Article 1088 of the Civil Code (in the divorce case heard by Meishan Court of Ningbo Beilun District Court, the husband remarried and gave birth to two children with others, the court decided to compensate 150000 yuan and awarded damages to 50000 yuan, which was upheld by Ningbo Intermediate People's Court in the second instance); Third, divorce proceedings can claim the division of property according to the principle of taking care of the faultless party, children born out of wedlock have the same rights as children born in wedlock.

Criminal level: If the crime of bigamy is constituted, it belongs to the case of the intersection of criminal private prosecution and public prosecution -- According to the Criminal Procedure Law and judicial interpretation, the case of bigamy is "a minor criminal case that the victim has evidence to prove", and the victim can bring a criminal private prosecution to the people's court on his own; if the evidence is insufficient or the private prosecution is difficult, he can also report the case to the case to the public security organ, and transfer the case to the case to the case to the case to the case to the case. What needs to be reminded is that the burden of proof of bigamy private prosecution lies with the private prosecutor, who must meet the proof standard of "living together in the name of husband and wife". The evidence organization is difficult and should be fully evaluated before prosecution.

Construction of 4. evidence chain and matters needing attention

Building an evidentiary chain around the concept of “cohabiting as husband and wife” is the common core of both criminal private prosecution for bigamy and civil determination of fault. The following evidence combinations are recommended:

  1. Evidence of marital status: marriage certificate, household registration book (to prove spousal status), and the other party’s marriage registration information.
  2. Evidence of living together in the name of husband and wife: the contents of calling each other "husband and wife" in WeChat chat records and introducing them in the name of husband and wife (keeping the original carrier); the rental contract of living together, property payment records, testimony of neighbors and community; the photos and videos of attending the gathering of relatives and friends together and participating in activities as husband and wife; the birth medical certificate of children.
  3. Fixed electronic evidence: chat records and transfer records should keep the original mobile phone and account number, and should be notarized or fixed through the electronic deposit platform when necessary-Yinzhou Court's White Paper on Marriage and Family Case Trial (2019-2021) points out that electronic evidence such as WeChat has many defects in proof and is difficult to adopt, so it is necessary to keep the original carrier and form a complete chain.
  4. Evidence of paternity: if the lawsuit involves paternity test or confirmation, it shall be handled by a qualified judicial authentication institution; according to Article 39 of the (I) of interpretation, if the father or the mother sues to confirm the paternity and provides necessary evidence, and the other party refuses to do paternity test without justifiable reasons, the court can presume that the confirmation party claims to be established.

Pay attention to legality in evidence collection: the evidence obtained by illegal ways such as eavesdropping and invading others' houses may be excluded; the privacy evidence collection involving the third party is recommended to be conducted under professional guidance, and the evidence should be fixed through legal channels such as alarm records and women's federation intervention if necessary.

The key points of procedure of 5. bigamy criminal private prosecution

If the evidence is enough to support the determination of "living together in the name of husband and wife", the initiation of bigamy criminal private prosecution must proceed according to the procedure: First, jurisdiction. Private prosecution cases involving the crime of bigamy fall under the jurisdiction of the people’s court in the place where the crime was committed (where the act of bigamy occurred or where the parties cohabited) or in the defendant’s place of residence. A party residing in Ningbo may submit a criminal private complaint to the basic-level people’s court within the relevant jurisdiction. Second, the filing materials. Criminal self-indictment (stating the identity of the defendant, the identity of the private prosecutor, the list of facts and evidence of the accusation), marriage certificate (proving the marriage relationship between the private prosecutor and the defendant), evidence of the defendant's bigamy or living with others in the name of husband and wife, the defendant's spouse relationship or remarriage registration information. Third, the standard of evidence. The standard of proof in criminal cases is higher than that in civil cases, which must reach "beyond reasonable doubt". If there is only doubt, hearsay or indirect speculation, the court may not file a case or rule to reject it. The more direct the evidence of "living together in the name of husband and wife" (public matching of husband and wife, living together, social publicity), the better. Fourth, coordination with the public prosecution. If the victim has difficulties in obtaining evidence in his private prosecution, he may report the case to the public security organ, which shall be transferred to the procuratorate for public prosecution after investigation by the public security organ; if the public security organ refuses to file the case, the victim may apply for reconsideration, apply to the procuratorate for filing supervision, or file a private prosecution with the court. Fifth, the punishment and the people are parallel. Criminal private prosecution and civil divorce litigation and damages litigation are independent of each other and can be parallel-the advancement of criminal procedures does not affect the civil claims of divorce and damages, and vice versa, but the fact of bigamy determined by criminal judgment has strong probative force in civil cases.

also remind the time and cost of private prosecution: the procedure of criminal private prosecution may last for a long time, and the private prosecutor should bear the burden of proof, and the risk of insufficient evidence should be borne by the private prosecutor. Before filing a private prosecution, it is suggested to evaluate the civil path (divorce, damages, property tilt) and the criminal path together: civil relief deals more directly with the relationship between property and identity, and criminal prosecution focuses on the denial and deterrence of bigamy. The two are not "two choices", but a combination of strategies based on the strength of evidence and the target.

Coping steps after the discovery of 6. having children outside marriage

If a spouse is found to have children outside of marriage, the emotional impact should be dealt with rationally according to steps, and it is suggested to proceed according to the time line: Step 1, calm and fix the evidence (the first time after discovery)-save the original carrier of the chat record, transfer record, co-residence trace and child birth information in the spouse's mobile phone, synchronize backup and consider notarization, and do not ask the other party to destroy the evidence first; Step 2, verify marriage and status-confirm your marriage registration, the relationship between the other party and the former marriage or a third party, and judge whether bigamy is involved (the former marriage is not dissolved + living together in the name of husband and wife); The third step is to evaluate the goal and path-first think clearly what you want: divorce and more property? Claim damages? Criminal liability for bigamy? Or do you want to maintain the marriage but property protection first? Different objectives correspond to different evidence centers and procedural choices. The fourth step is to start the procedure in separate lines-if the divorce is decided, sort out the fault evidence and file a divorce lawsuit and claim damages and property tilt. If the evidence points to bigamy, evaluate the feasibility of criminal private prosecution or reporting the case; If the property gift of a third party is involved, the return is claimed in another case. Step 5, dealing with children's related affairs-parent-child relationship confirmation, maintenance, inheritance rights and other issues are handled in parallel or subsequent to the marriage procedure, paying attention to the legal rights of illegitimate children in inheritance are not affected by wedlock or not.

There are two reminders in the whole process of coping: first, the evidence collection is legal-evidence collection through tracking, eavesdropping, invading other people's houses and other ways may be excluded or even lead to tort liability, and the legal channels (alarm, women's federation intervention, notarization, court investigation) are more reliable; second, emotion management-the stimulation of extramarital birth facts is easy to make impulsive prosecution or retaliatory consumption, and rational evaluation of the evidence and then start the procedure, avoid the cycle of "prosecution on lack of evidence, more passive after losing. Seek support from women's federations (12338 hotlines) or professional counselling when necessary.

7. Frequently Asked Questions

Does having an illegitimate child mean bigamy?

No. The birth of children only proves extramarital sex or cohabitation, and the core criterion for bigamy is "re-registration of marriage" or "living together in the name of husband and wife". The illegitimate child alone cannot identify bigamy, but also requires evidence "in the name of the couple.

Is the crime of bigamy easy to establish?

Not easy. The standard of proof in criminal cases is high; it requires sufficient evidence to demonstrate “cohabitation under the guise of marriage,” and mere facts such as ambiguous online chats, private dates, or the birth of children are generally insufficient to meet this threshold. In practice, a large number of cases can not be filed due to insufficient evidence or private prosecution is not established, and finally through the civil divorce damages relief.

Does not constitute bigamy, can you still claim damages?

Can. If a spouse is cohabiting with another person, he or she may claim damages under the second statutory circumstance of Article 1091 of the Civil Code; if he or she continues to have extramarital affairs and has children, he or she may also fall into the fifth item of "other major faults". The principles of compensating for damages and affording preferential treatment to the faultless party in property division may be asserted concurrently.

If you find that your husband has an illegitimate child, should you report the case or sue for divorce first?

It depends on the evidence: if bigamy is constituted and there is sufficient evidence, you can report the case to the public security organ or file a criminal private prosecution, and at the same time file a divorce lawsuit to claim damages and property tilt; if the evidence is not sufficient, give priority to the fixed evidence (chat records, residence records, paternity test clues), claim rights and interests through the civil path, and criminal prosecution as a follow-up option. The two paths can be parallel, but the evidence organization must go first.

8. Lawyer's Practical Insights

If you find that the other party gave birth to a child outside of marriage, don't rush to identify "this is bigamy". The threshold for bigamy lies in whether the marriage is registered again or whether it is living continuously with another person in the name of husband and wife, and the mere presence of children outside marriage does not automatically constitute it. In practice, many people devote all their efforts to pursuing criminal charges for bigamy, only to find that the evidence fails to meet the threshold for criminal prosecution, thereby delaying the pursuit of their substantive civil claims. A smarter approach is to regard extramarital childbirth as an important part of proving the continuity and stability of extramarital relationships, and at the same time serve the real demands of divorce and damage compensation.

The construction of evidence must follow a specific order. Birth medical certificate, household registration, witness testimony of both parties as husband and wife, rental and payment records of common residence, chat and transfer are all pieces of the puzzle. A single piece is not necessarily useful, but a chain can explain the problem. What needs to be reminded is that evidence collection should pay attention to legal boundaries, install monitoring without permission, and invade other people's equipment to obtain content, which may make oneself passive. Only materials obtained through formal channels can stand.

The two paths can run in parallel, but their primary and secondary roles must be clearly distinguished.In civil terms, the fact that extra-marital childbirth is the fault of the other party, and claims damages, custody and property care; in criminal terms, whether to file a private prosecution should be very cautious, because the proof requirement is high, the cycle is long, and it is easy to completely close the door to negotiation. If you pay more attention to clearing up the relationship as soon as possible and getting actual benefits, you can first use the evidence on the civil and negotiation tables, and take criminal as an alternative rather than the first choice, so as to avoid sacrificing the overall situation for the sake of fighting.

"Having illegitimate children = bigamy" is one of the most widespread misconceptions. The legal determination of bigamy is locked in "living together in the name of husband and wife", and the significance of illegitimate children lies in proving the continuous stability of extramarital relations, rather than directly triggering the crime of bigamy. Practical suggestions to the parties concerned: first, to fix the chain of evidence around "living together in the name of husband and wife", instead of just staying in the fact of giving birth-publicly matching records of husband and wife, certificates of common residence and testimony of relatives and friends are the most valuable three types of evidence; The second is to distinguish between criminal and civil paths-the criminal private prosecution of bigamy requires high proof, even if it does not constitute bigamy, those who have a spouse living with others can still claim damages in accordance with Article 1091 of the Civil Code when divorcing, and can claim economic compensation according to the situation of housework. Third, the confirmation of parent-child relationship, alimony, inheritance and other issues belong to different procedures from the determination of bigamy, which can be promoted separately. Do not miss the best opportunity for civil relief because of "only staring at bigamy.