When Two Meant Trouble: Bigamy in VDL

On 2 March 1841, a woman named Sarah Nicholls stood before the Supreme Court of Van Diemen’s Land and was convicted of bigamy. She received seven years — the maximum the law allowed. It is the earliest bigamy conviction in the colonial court record, and it raises an immediate question: what had Sarah Nicholls actually done?

We know, because she told the court herself. She had been married to a man named Nichols for two years, having married him at Trinity Church Hobart on 23 September 1839.

That marriage had broken down. A while after Sarah met Thomas Soles, married him at St George’s Church Sorell, and lived with him for five months.

Then her first husband had her prosecuted.

Not the police. Not a concerned citizen. Her first husband – the man she had left – had used the criminal law to pursue her, and the court gave her the maximum sentence available. Sarah Nicholls arrived in Van Diemen’s Land not as a transported convict but as a free woman. She left the courtroom facing seven years in the convict system.

The answer to “why would someone commit bigamy?” almost never involves a calculating fraudster or a deliberate deceiver. More often, it involves a broken marriage, an absent spouse, and a human need to build a new life. The law called it a serious crime. The courts, more often than not, quietly declined to treat it as one. But in 1841, nobody declined.

A Colony Built for Separation

Van Diemen’s Land was, by design, a place of broken families. Transportation severed marriages across hemispheres. A convict shipped from Cork or Liverpool might never see their spouse again. The wife left behind in England faced an impossible legal position: her husband was alive, somewhere, but gone. She could not remarry. She could not divorce. She could only wait.

And wait people did — for years, sometimes decades. But waiting has its limits, and life has its demands. New relationships formed. New households were established. Eventually, some of those relationships were formalised in church or registry, making one or both parties technically criminals under English law.

The colony knew this. Prosecutors knew this. The men of the juries knew this. Which is why a significant number of bigamy charges in the colonial period were simply ignored: cases thrown out before they reached trial, or resolved with a nolle prosequi: the Crown quietly declining to proceed. The machinery of justice went through the motions and then stepped aside.

The Impossible Marriage Law

For those who did face trial, the underlying problem was the same: divorce in colonial Tasmania was extraordinarily difficult, and for most ordinary people, practically impossible.

Until the Matrimonial Causes Act 1860, Tasmania had no local divorce jurisdiction at all. A spouse wanting a legal dissolution had to pursue a private Act of Parliament in London, a process so expensive and so remote that it simply did not exist for working people. After 1860, local divorce became possible, but it remained slow, costly, and socially ruinous, particularly for women.

The practical result was that thousands of marriages that had failed, through desertion, cruelty, prolonged absence, or simple incompatibility, remained legally intact regardless of what either party wanted. A husband who had vanished ten years ago was still, legally, a husband. A wife who had left and started a new family elsewhere was still, legally, a wife.

For people in this situation, bigamy was not a choice between crime and respectability. It was a choice between crime and living alone indefinitely, with no legal recourse and no realistic prospect of one.

What the Court Record Shows

Between 1841 and the 1946, 114 bigamy cases came before the Tasmanian Supreme Court: 82 involving men, 32 involving women. The pattern of outcomes tells its own story.

Women were acquitted, or had charges dropped, at nearly twice the rate of men. When they were convicted, they were far more likely to receive what can only be described as nominal punishment. Ivy Steer was sentenced to ten minutes detention. Catherine Smith to one hour. Daphne Grundy was imprisoned until the rising of the court later that day and then discharged. Hannah White served twenty-four hours.

These were not sentences. They were the judiciary’s way of saying: we are required to find you guilty, but we decline to pretend this is serious.

Men received slightly more substantial terms on average, but the same pattern appears: detained until the rising of the court, suspended sentences, bind-overs requiring good behaviour. By the early twentieth century, particularly as the First Offenders Act came into wider use, suspended sentences had become the default for most bigamy convictions. The courts had effectively stopped punishing the offence while continuing to record it.

The Few Who Deserved Punishment

The genuine fraudster, the serial bigamist who deceived multiple women for financial gain, or who used false identity to evade consequences, did appear occasionally, and the record shows courts were capable of treating such cases quite differently. Heavy sentences of three, four or seven years occasionally occurred. But these cases were the exception. The great majority of defendants in the bigamy record were ordinary people caught in impossible domestic circumstances, doing what humans do: trying to live, and love, within the constraints available to them.

What Happened to Sarah Nicholls

The sentence was seven years, but the punishment did not end there. Her conduct record, preserved in TAHO and transcribed by the Female Convicts Research Centre, shows what the seven years actually meant in practice.

She spent the first twelve months in the Female Factory.

The Lieutenant Governor’s decision of 8 March 1841, just six days after sentencing, specified that she was then to be assigned to any district removed from the residence of either of her husbands. Even the Lieutenant Governor appears to have understood that this was a domestic dispute routed through the criminal courts, and quietly ensured she would not be returned to the vicinity of the man who had prosecuted her, or the other man she had married.

What followed across the next several years was a catalogue of resistance.

She absconded. She was absent without leave. She was found on a boat at eleven at night. She was found in bed with a man during the day. Each infraction brought further punishment: hard labour, solitary confinement, more restrictions. By 1848, the authorities had had enough: she was assigned to the interior and barred from entering Hobart Town.

It is tempting to read this as a story of a difficult woman. It is more accurate to read it as a story of a free woman who did not accept that the law had the right to control her movements, and who kept testing its limits because the alternative was submission to a system that had already treated her with spectacular injustice. The punishments didn’t deter her. They didn’t reform her. They kept her poor and controlled, and eventually pushed her out of sight.

Did Any of It Serve the Public Good?

Sarah Nicholls’s case makes the question almost answer itself. Her original offence harmed nobody. Her prosecution was initiated not by the state but by a private individual pursuing a personal grievance. The maximum sentence was imposed on a free woman for a five-month marriage that had hurt nobody except a husband’s pride.

The system’s response to her subsequent resistance was to pile punishment on punishment — because it had no other mechanism. It could not ask whether the original sentence was just. It could not consider whether a different approach might work. It could only respond to each infraction with more of what had already failed.

The bigamy record across 114 Supreme Court cases tells the same story in aggregate. Token sentences measured in minutes and hours. Bills ignored by juries. Charges quietly dropped. Suspended sentences requiring good behaviour. The pattern is not one of a system confidently enforcing a necessary law. It is one of a system going through the motions of a law it did not quite believe in, applied to people it did not quite want to punish — with the occasional exception, like Sarah Nicholls, where someone with a private grievance and the right to prosecute decided to push the machinery into motion.

The stories of the 114 people who came before the Tasmania Supreme Court on bigamy charges are, in the end, mostly stories about the gap between what the law demanded and what human life requires. The law demanded lifelong fidelity to a legal instrument regardless of circumstance. Human life required the freedom to form new bonds when old ones had broken beyond repair.

The courts understood this, eventually. It took the law considerably longer to catch up.

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Sources: Prosecution Project database; TAHO Supreme Court records; Female Convicts Research Centre: conduct record transcription for Sarah Nicholls. Sentence data compiled from the VDL/Tasmania Supreme Court bigamy case register.