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Tuesday, March 12, 2013

Immigration and Internet Proxy Marriages

“Technique has taken over the whole of civilization. Death, procreation, birth all submit to technical efficiency and systemization.”
― Jacques Ellul

To Jacques Ellul's list we can now add a technology-enabled technique around the institution of marriage. According to this recent article, You May Now Kiss the Computer Screen, in the New York Times, some immigrant communities in the U.S. are turning to modern technology to conduct marriages by proxy via Skype.

This is the conjunction of something old and something new.  Proxy marriages where either the bride and groom are not physically present for the ceremony have a long and noble history. It's been used for centuries - the wedding of Louis XVI and Marie Antoinette, for example. In Europe the practice goes back to the Roman era though at that time there were different rules for men and women. The bride had to be residing in the husband's place of residence while the groom could be anywhere. The Harvard Law Review article I found on this said it was because of the legal requirement that the bride be led to her husband's home but I strongly suspect that the reason behind it was to make it easy for soldiers or other men who travelled outside their home regions to contract marriages with women back in the home town.

Proxy marriages were also used in settler colonies like the U.S. or Australia where there were very few women from the home country and in the Old American West where ladies from "back East" married men (miners, farmers...) by proxy and then made the long journey west across the country to join their husbands. Before Americans dismiss this practice, they might want to check their family histories since it's quite possible that they have ancestors that did this.

The new part is the use of technologies like Skype to conduct these marriages.  Are modern proxy marriages via Internet legal? And more importantly can a couple marry this way and benefit from immigration laws that allow for a citizen to legally bring in his or her spouse? The answer is that it depends on the country and, in the case of a bi-national couple, how each one referees the conflict between the domestic laws of the nationals concerned.

France, for example, is a country that does not allow "mariage par procuration." Though the question has been raised often enough that the Minister of Justice added a few words about it to their FAQ. They say that it is not permitted for the following reasons:
C’est l’article 184 du code civil qui sanctionne le défaut de comparution personnelle d’un ou des futurs époux. L’officier de l’état civil doit s’assurer de l’identité des futurs époux et surtout du consentement de chacun des futurs époux.
(Article 184 of the Civil Code does not permit the non-presence of one or other of the future spouses. The civil status officer must be assured both of the identity of the future spouses and their agreement to the marriage.)
In the United States four states still have proxy marriage laws on their books:  California, Colorado, Texas and Montana.  The last allows for what's called "double-proxy marriage" which means that neither the bride nor groom have to be present for the ceremony.  Who is taking advantage of this?  People in the U.S. military where a soldier has been posted abroad but still wishes to get married to his or her sweetie back in the States.  I have to concur with Petty Officer 3rd Class Jason Drew who said "It's not very romantic" but it got the job done and it's perfectly legal according to American domestic law.  

The two examples above cite what domestic (national) law has to say about proxy marriage but what happens when it's a citizen marrying a non-citizen and the marriage ceremony is conducted in another country where proxy marriage is perfectly legal?  And what is the status of the non-citizen spouse for immigration purposes?

In general nations recognize marriages conducted under the laws of other countries even if those laws are not the same.  The principle is called lex loci celebrationis (the law of the place where the marriage is celebrated).  Let's say, for example that my French husband and I had decided to get married in the U.S. instead of France and under the laws of my home state (State of Washington marriage law) we got married by the priest in the local Catholic Church.  That is not the way it works in France which only recognizes a legal marriage conducted at the mayor's office.  Nevertheless, France would have recognized that American marriage and I would still have benefitted from family reunification immigration laws before the French authorities provided that we respected the procedure (a dossier to be sent to the French consulate, banns to be published beforehand and so on).      

So what happens if the marriage is by proxy instead?  If I'd been in the U.S. in Montana and my future spouse had been in Paris, France and the ceremony had been conducted in the States?   I found the answer to my question in a rather indirect way in this note published by the French consulate in Brazil (a country that does allow proxy marriages):
Il est important de noter que conformément aux dispositions de la loi française, le mariage entre Français et entre Français et étranger, contracté en pays étranger, dans les conditions précitées, est valable, s'il a été célébré dans les formes usitées dans ledit pays et si le conjoint français a personnellement comparu lors de la célébration (le mariage par procuration n’est pas reconnu en France). 
(It is important to note that in conformity with French law, a marriage between French nationals and between a French national and a foreigner, contracted in a foreign country, under the aforementioned conditions, is valid if it was celebrated under the forms of that country and if the French spouse was personally present during the ceremony (proxy marriage not being recognized in France).
So from that one can conclude that the French authorities will not be troubled by Internet proxy marriages anytime soon and any Franco-American couple who might wish to benefit from Montana's marriage laws are out of luck as far as the French are concerned.

Just for fun, let's turn it around and look at what would happen if a marriage by proxy had taken place between me and my French spouse and we had decided to live in the U.S.?  According to the U.S. Department of State Foreign Affairs Manual that marriage would be valid in the U.S. (in all 50 states) and acceptable for immigration purposes provided that the marriage is consummated (i.e. "marital relations" had commenced, or to be very direct about it - the couple has sex). 
A proxy marriage, that has not been subsequently consummated, does not create or confer the status of “spouse” for immigration purposes pursuant to INA 101(a)(35). A party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e). 
Isn't that interesting?  I just had to wonder after reading this what proof of consummation would have been required of me and my spouse if we had gone the proxy marriage route in the U.S.    Cyrus Mehta at ILW.com says:
The immigration authorities do not require definitive proof of consummation, and proof of the two parties being together physically after the celebration of their proxy marriage, along with a statement affirming consummation, ought to suffice. 
Internet marriages are potentially a problem for the U.S. authorities and other countries that recognize proxy marriage.  It's not just about marriage fraud for the purposes of immigration (les mariages blancs) but also about forced marriages and the potential for sex-traffickers to use these laws to more easily bring women into a country to work in the sex trade.  All that was true before the advent of  "Skype marriage" but where technology makes it a little more efficient to do this, it's probably wise to keep a close eye on it.  

May I add another consideration as well?  Some Americans perceive all this as a fine business opportunity and for a fee there are companies that offer to facilitate these kind of marriages. I also saw at least one site on the Net as I was doing the research for this post that offered "proxy marriage services." But are these people reliable and are they well enough informed about different marriage regimes around the world to be offering "expert" advice on it?  I think not because the site I saw implied that U.S. proxy marriages are valid everywhere in the world which is not true.

My take on it is that if you are in a bi-national relationship that you wish to formalize according to the laws of one or the other of your respective countries take nothing for granted and don't get your information off the Internet.  At the very least head down to the consulate and ask. 

4 comments:

Blaze said...

The issue of marriage, of course can be complicated by different country's definitions of marriage.

For example, same sex marriage has been legal and recognized for years in Canada, but not in most other countries around the world.

My sister came to Canada from US to marry her female partner several years ago. My sister's partner is an "accidental Canadian." Her parents are Canadian, but she was born and raised in US.

Canada recognizes the marriage. Their home state does not.

They would love to retire in Canada. As a Canadian citizen, my sister-in-law could sponsor my sister for immigration as her legal spouse in a way I can't as her sister. However, the whole IRS issue is forcing them to reconsider those plans.

Then, there is the issue of polygamy. Canada does not recognize polygamous or bigamous marriages, but we have many immigrants from countries which do. There was a huge murder trial here last year where a man, his second wife and son were convicted of killing his first wife and three teenage daughters from the second marriage, which the first wife (and only wife under Canadian law!) played a major role in raising.

Both marriages took place in Afghanistan. When the family immigrated to Canada, the first wife was identified as a cousin. It was only after the murders that officials became aware that she was, in fact, the first wife.

Who says marriage is easy to understand?

Victoria FERAUGE said...

@Blaze, Very good point you made. As I was writing the post I thought about the same-sex marriage debate which is going on in multiple countries today (the mariage pour tous in France).

Another issue is that status of "civil unions" and immigration (even for straight couples). Aside from marriage, France has something called the PACS and concubinage which are NOT recognized in a lot of countries. I met French couples in Japan where one person had been expatriated and the couple had to get married in order for one spouse to be able to join the other one. The folks I talked to about it were not very happy about this - they had good reasons to be PACsed and not married but they were stuck because the Japanese authorities weren't budging. I think the US takes a similar view.

Blaze said...

Would PACs be what we call common law marriages in Canada?

Common laws vary from province to province, but is certainly very common among young people and especially so in Quebec.

Common law partners have had legal status in Ontario for about 30 years, including benefits available through employers.

I think only a few US employers recognize common relationships for benefits. I also don't think it has much legal standing in US.

I'm not sure how common law is considered for immigration purposes to Canada.

Victoria FERAUGE said...

@Blaze, Oh I should really do a post about the PAC (pacte civil de solidarity). It's a civil union not a common law marriage and looks a lot like marriage but doesn't have all of the rights associated with it. Though I think it was primarily created for gay couple, it's actually quite popular among non-gay couples. I know quite a few folks who've done this (to the dismay and horror of their parents).

The closest thing they have here to common law marriage is, I think, concubinage. Two people freely living together without marriage (or PACs) but who can have the union registered with the authorities for certain purposes.

PACS, marriage and concubinage all have different rules when it comes to the immigration of a foreign partner. Yep, I really should write a post. :-)