Thursday, September 17, 2009

Legal issues in proxy marriages

An AP story titled Proxy wedding means Marine's widow, baby unwelcome on the case of Hotaru Ferschke presents issues of conflicting law in the matter of Hotaru's marriage to the now-deceased Sgt. Michael Ferschke.

Michael and Hotaru had been together in Japan for more than a year, and she was pregnant when he deployed. They subsequently married by proxy (not physically present in the presence of each other), and did not see one another, in marriage, and then Michael was killed in Iraq. Were they actually married?

The Immigration & Nationality Act says that, for the purposes of immigration law, the definition of spouse does not include a "wife or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated."

The law is being read such that the consummation has to take place AFTER the marriage, which was not done in this case.

Here is a place where someone needs to define a "constructive" consummation. In patent law, we have a constructive reduction to practice, even though there is not an actual reduction to practice. In Hotaru's case, there was an actual "reduction to practice" but is said not to count because it was too early.


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