De Jure vs. De Facto: “Factual Bigamy” Under Chinese Law
The concept of factual bigamy Chinese law recognises is broader than many assume. Following my earlier post, several readers asked about the actual wording of Article 1042. The relevant part reads:
“Bigamy is prohibited. No one who has a spouse may cohabit with another person.”
Simple enough, but its application, particularly the de jure / de facto distinction, often catches Common Law practitioners off guard.
Two Forms of Bigamy
Legal (de jure) bigamy occurs when a married person registers a second marriage with the civil affairs bureau, often through fraud or administrative error. That second marriage is void from the outset.¹
Factual (de facto) bigamy (事实重婚 / shishi chonghun) is what the phrase “cohabit with another person” targets. No second marriage certificate is needed. A married person who lives with a third party in a stable, continuous relationship, holding themselves out publicly as husband and wife, commits factual bigamy.²
How Courts Identify It
When assessing factual bigamy Chinese law requires that the cohabitation be stable, continuous, and public. Courts look for a “marriage-like” state, not merely a sexual relationship.
Evidence typically includes third-party testimony from neighbours or colleagues who addressed the pair as spouses, social documentation such as wedding photos or shared anniversary posts, and joint domestic arrangements like a shared lease or common finances.
Consequences
Civil
Bigamy is a statutory ground for divorce and entitles the innocent spouse to claim damages.³
Criminal
Article 258 of the Criminal Law provides for up to two years’ imprisonment or criminal detention.⁴
The default path is private prosecution. The innocent spouse files directly with the court, bearing their own evidentiary burden without police support.⁵ Standalone criminal prosecution is rare. Public prosecution becomes viable only where bigamy is accompanied by other offences, such as document forgery or fraud.⁶
Notes
¹ Civil Code, Arts. 1051 & 1054.
² Civil Code, Art. 1042; per Supreme People’s Court guidance.
³ Civil Code, Art. 1091.
⁴ Criminal Law, Art. 258.
⁵ Per Supreme People’s Court interpretation of the Criminal Procedure Law.
⁶ Public prosecution requires concurrent offences carrying a sentence exceeding three years.
Disclaimer
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