Kerry Abrams (UVa) recently talked with folks at her school about her work on Marriage Fraud, 100 Cal. L. Rev. 1 (2012). Here’s a portion of the interview:
How did you become interested in writing about this topic?
I study both family law and immigration law, and I noticed that each area had its own doctrine of marriage fraud. I realized that the idea of fraud in marriage is a really a way of defining marriage in the negative. It’s a way of classifying a marriage as a sham, even if all of the formal requirements of marriage have been observed, because there’s some key element that’s missing. Many scholars and activists have been arguing lately about what marriage is — some say it’s a lifetime commitment to one person, some say it’s a union between a man and a woman, some say it’s a financial arrangement. I thought that if I could identify what marriage isn’t, it might tell us something about what marriage is.
What is marriage fraud?
In family law, marriage fraud is lying to the person you are marrying about your willingness to have children or sex with them, and the remedy is an annulment — it’s as if the marriage never existed. In other areas of law, it’s marrying to get a particular benefit — a tax break, immigration status, health insurance, social security benefits, military benefits, even a gym membership.
What did your research regarding marriage fraud reveal?
Many areas of law have had to deal with the fact that if you attach substantial benefits to marriage, some people will marry to get the benefits. But they’ve dealt with the problem in very different ways. For example, some courts have said that as long as a couple “intends to establish a life together,” it doesn’t matter if they’re getting married so that one of them can get a green card or military housing. Courts will say things like, “This husband mowed the lawn, laid carpet and cleaned the house, so we don’t really care whether he loves his wife or not — he’s acting married, and that’s good enough.” There’s a wide spectrum of tests courts apply, from the purely formal (Is this couple legally married? If so, we don’t care why) to functional (Are these people acting married?) to combination tests that require a formal marriage plus evidence that the couple is acting married or evidence that they were really in love when they married. * * *
Why does marriage fraud matter to the public, and to officials? Who is the victim of marriage fraud?
I spent quite a bit of time in the article speculating about this issue. At first glance, it seems like it’s a purely financial harm — people getting benefits they don’t deserve. But then we have to ask, why do married people deserve more than other people? In most cases, marriage seems to be serving as a proxy for something else, such as a long-term dependency relationship. There are also expressive harms: If marrying purely to get a benefit becomes common, then the idea that marriage is an important commitment to another person could become diluted over time. * * *
How does this article fit into your overall scholarship?
Fraud has been lurking in the shadows in my work for years, but this is the first time I’ve addressed it head-on. I wrote an article a few years ago on how immigration law functions as a form of family law for immigrants and their relatives, and I discussed the immigration marriage fraud doctrines briefly there. I’ve also written several articles about how various groups of immigrant women — Chinese women who came here in the late 19th century, Japanese women who immigrated in the early 20th century, and Eastern and Southern European women who immigrated in the 1920s — were categorized either as proper wives or as undesirable laborers or prostitutes. In those waves of immigration, courts used notions of what a “real” marriage looked like in order to make decisions about whether to admit or exclude an immigrant. Often, a “real” marriage was a love match, and a “sham” marriage was an arranged marriage. But in the cultures that these immigrants were coming from, arranged marriage was the norm.
What are you working on next?
I spent the summer researching the history of married women’s citizenship. Until fairly recently, many states limited a married woman’s ability to enter into contracts, sue, be sued, vote, serve on juries, or manage their own property. Their state citizenship, often determined by their domicile, mattered, because they might be able to do these things in one state but not in another. But there were also laws in some states maintaining that a married woman’s domicile followed her husband’s, and federal laws making her national citizenship follow her husband’s. So it wasn’t where a married woman herself lived that determined whether she could enter into contracts, vote, etc., but where her husband was domiciled (and in many cases, no one knew where the husband was). I’m mapping out the law in various jurisdictions and showing how new rules developed to get around the problems that the uncertainty of women’s rights presented, both to the women themselves and to people who wanted to do business with them.
Check out the full interview here.