[Direct answer]No, it does not constitute bigamy. The crime of bigamy requires either marrying again while having a spouse, or marrying someone knowing that they already have a spouse, and is punishable by fixed-term imprisonment of not more than two years or criminal detention. In practice, bigamy includes a legal marriage superimposed on a legal marriage (registering twice) and a legal marriage superimposed on a de facto marriage (living together with others as a married couple). Simply having children outside of marriage is an act of infidelity that violates the duty of marital fidelity. If it is not accompanied by legal marriage registration or living together as a married couple, it is generally regarded as a fault in divorce rather than a crime of bigamy, but it may affect the division of property and compensation for damages during the divorce.

I. Problem background and typical scenarios

When many people discover that their spouse has an illegitimate child outside of marriage, their first reaction is, "This is bigamy. We need to report it to the police and have the person arrested." However, when they go to the public security organ, they are told, "It's just an affair. It doesn't constitute bigamy, so we won't file a case." Some people even hold the child's birth certificate but find it difficult to prove that the other party is living with someone else as a married couple. Bigamy is a criminal offense, but the threshold for prosecution is higher than people imagine. It's not the same as moral condemnation.

II. Key points of contention

First, the two forms of bigamy and the criteria for identifying it. Second, the relationship between illegitimate children and bigamy, and what paternity testing can prove. Third, the self-prosecution and public prosecution pathways, and the evidentiary requirements for the crime of bigamy. Fourth, when it does not constitute bigamy, the remedies available to the innocent party in a divorce.

III. Professional analysis by Henglue Law Firm

The first layer: The core of determining bigamy lies in the "marital relationship" rather than "sexual relations or childbirth facts". Firstly, it refers to a legal marriage combined with another legal marriage, that is, the previous marriage has not been dissolved but the person has registered for marriage with another person; Secondly, it refers to a legal marriage combined with a de facto marriage, that is, during the existence of the previous marriage, the person has continuously and stably lived with another person in the name of a couple, and the surrounding people also consider them to be a couple. Only extramarital sexual relations and childbirth, without the appearance of being a couple and living together, usually do not constitute bigamy. The second layer: The role of illegitimate children and paternity testing. Paternity testing can only prove the biological parent-child relationship, which is an important evidence for identifying infidelity and custody obligations, but cannot alone prove bigamy. To accuse someone of bigamy, it is still necessary to further prove that the two parties have treated each other as a couple in public, such as living together, holding wedding ceremonies, referring to each other as a couple in public, and registering the children's information, etc. The third layer: The prosecution path of bigamy. Bigamy is generally a self-prosecution case, and the victim can directly file a criminal self-prosecution with the court; if the circumstances are serious or involve forgery of documents, the case can be reported to the public security organ for public prosecution, and if the report is not accepted, the victim can apply for a review. Evidence is the key to success, and it is necessary to submit marriage registration records, evidence of living together, witness statements, chat records and photos, etc. to form a complete chain of evidence. The fourth layer: Civil remedies when bigamy does not constitute a crime. Although infidelity does not constitute a crime, it constitutes fault in divorce, and the court can favor the innocent party when dividing property. The innocent party can also claim divorce damages; at the same time, if it can be proven that the other party has given away the joint property to a third party, the innocent party can claim that the gift is invalid and recover it. In the judicial practice of Beijing courts, the determination of "living together in the name of a couple" is relatively cautious, and only the facts of childbirth and daily interactions are generally not recognized. The organization of evidence directly affects the outcome.

IV. Practical suggestions and legal basis

The first step is to secure evidence of the infidelity and the fact of childbirth, such as birth certificates, paternity tests, and materials showing cohabitation and public declarations. The second step is to assess whether the standard of living together as a married couple has been met, and to decide whether to file a private lawsuit or report the case to the police. The third step is to prepare witness statements and living evidence when initiating a private lawsuit for bigamy, forming a chain of evidence. The fourth step is, if the act does not constitute bigamy, to claim fault, damages, and recover the property gifted to the third party in the divorce litigation. The main legal basis: Article 258 of the Criminal Law of the People's Republic of China, and Articles 1051, 1079, and 1091 of the Civil Code of the People's Republic of China (effective as of January 1, 2021). Specific applications shall be subject to the currently effective provisions.

5. Henglu Law Firm's Reminder

Three key points regarding bigamy: To determine whether someone is guilty of bigamy, the focus is on whether they have assumed the marital status and lived together as a couple. Having an illegitimate child does not necessarily constitute bigamy. In cases of self-prosecution, a complete chain of evidence is required; a paternity test alone is not sufficient. Even if someone is not guilty of bigamy, they can still claim fault and compensation during the divorce process. In disputes involving bigamy and extramarital affairs, the parties involved can seek legal assistance through the following channels:Divorce litigation and family disputesFor those who need a comprehensive solution for their services, involving criminal self-prosecution and reporting cases, they can combine the two services together.Criminal defense and criminal case filingFor cases involving asset recovery, you can refer to the following document for more information:Creditor's rights and debts, and enforcementFor any questions or difficult situations, please feel free to consult us.Special servicesTeam.

VI. Frequently Asked Questions

Q1: Does having an illegitimate child necessarily constitute bigamy?

Not necessarily. Bigamy requires a second marital relationship or living together as a couple. Having a child outside of marriage is just an act of infidelity, and it usually doesn't constitute the crime of bigamy.

Q2: How to prove that they are living together as a married couple?

It is possible to collect records of renting or owning property together, chat logs and testimonies in which the couple referred to each other as "husband" and "wife", participation in family and friend activities together, and children's registration information, etc., to form a chain of evidence of continuous and stable cohabitation.

Q3: How to prosecute the crime of bigamy?

These cases are generally self-prosecution cases, and criminal self-prosecution can be directly initiated in court; or a report can be made to the public security organ. If the case involves forgery of documents and other circumstances, it may be transferred to public prosecution. If the case is not filed for prosecution after reporting, the victim can apply for a review.

Q4: If it doesn't constitute bigamy, can I request compensation?

Yes. Infidelity is a fault, and when getting a divorce, you can request the court to consider the interests of the innocent party when dividing the property. If you meet the requirements, you can also claim damages for divorce and recover the joint property that was gifted to a third party.

Q5: If the other party commits bigamy, is the marriage still valid?

Bigamy is a legally invalid situation, and the party concerned may request the confirmation of the invalidity of the marriage without any time limit. However, it should be noted that confirming the invalidity of a bigamous marriage and prosecuting the crime of bigamy are two different procedures.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Divorce litigation legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and publicly available adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.