01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM California Law Review Vol. 100 February 2012 No. 1 Copyright © 2012 by California Law Review, Inc., a California Nonprofit Corporation Marriage Fraud Kerry Abrams* This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework for understanding these new doctrines by demonstrating that courts apply different tests for finding fraud depending on the value of the benefit sought compared to the cost to the individual of using marriage to obtain it. Furthermore, the Article argues that marriage is an ineffective means for distributing public benefits that serve specific objectives; in other Copyright © 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Albert Clark Tate, Jr. Professor of Law, University of Virginia School of Law. This Article benefitted greatly from workshops at Vanderbilt Law School, the University of Richmond Law School, the Law & Society Annual Conference, and the Emerging Family Law Scholars Annual Meeting. I thank those who read various drafts and provided helpful comments, especially Kristin Collins, Christopher Cotropia, Anne Coughlin, Brandon Garrett, Joanna Grossman, Meredith Johnson Harbach, Clare Huntington, Leslie Kendrick, Terry Maroney, Shari Motro, Melissa Murray, Kevin Stack, and Jeannie Suk. For their excellent research assistance, I thank the University of Virginia Law library staff, especially Kent Olson and Kristin Glover, and my research assistants, including Alejandro Cruz, Amelia Dungan, Elizabeth Katz, Jordan Lane, Dennis Mulgrew, and Kent Piacenti. Special thanks go to Reese Nguyen, Aylin Oncel, and the team of editors at the California Law Review for their exceptional work. 1 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 2 CALIFORNIA LAW REVIEW [Vol. 100:1 words, marriage is being asked to do too much work. As a possible response to this problem, the Article concludes that lawmakers could disaggregate the components of marriage to which they attach public benefits. This would improve the efficacy of public benefits distri- bution without entirely dismantling the institution of marriage or jeopardizing the stability that it may provide to society. Introduction ......................................................................................................... 3 I. Marriage Fraud as Contract Fraud ................................................................... 7 A. The “Essentials” Test .......................................................................... 7 B. Explaining the “Essentials” Test ....................................................... 10 II. Public Benefits Fraud Tests.......................................................................... 14 A. Formal Marriage Tests ...................................................................... 15 B. “Marriage-Plus” Tests ....................................................................... 19 1. Temporal Requirements ............................................................. 19 2. Age Rules ................................................................................... 20 3. Procreation Rules ....................................................................... 21 4. Cohabitation Rules ..................................................................... 21 5. Different Sex Rules .................................................................... 22 6. “Divorce-Plus” Rules ................................................................. 23 C. Functional Marriage Tests ................................................................ 26 D. Integrated Tests................................................................................. 30 E. A Theory of Public Benefits Fraud Tests .......................................... 37 III. Marriage Fraud as Fraud on the Public ....................................................... 39 A. From Contract Fraud to Public Benefits Fraud ................................. 39 1. Public Benefits Linked to Marriage ........................................... 40 2. The Rise of No-Fault Divorce .................................................... 44 3. The Decriminalization of Nonmarital Sex ................................. 46 B. Harms to the Public ........................................................................... 48 1. The Concept of Harm: Fraud on the Market .............................. 48 2. Harms to the Public in Marriage Fraud Cases ........................... 49 a. Financial Harms ................................................................... 49 b. Expressive Harms ................................................................ 52 IV. Reconfiguring Marriage.............................................................................. 54 A. The Costs of Tying Public Benefits to Marriage .............................. 55 1. Marriage Targets the Wrong Beneficiaries ................................ 55 2. Marriage Obscures Discrimination ............................................ 58 3. Unbalancing Marriage ............................................................... 61 B. Disaggregating Marriage .................................................................. 61 Conclusion ........................................................................................................ 66 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 2012] MARRIAGE FRAUD 3 INTRODUCTION In the last two decades, marriage has emerged as an enormously important topic of legal scholarship, not just in the area of traditional family law, but also in constitutional,1 tax,2 immigration,3 social security,4 welfare5 and criminal6 law. The marriage equality movement and its attendant legal questions of whether same-sex couples can be integrated successfully into marriage as we know it animates much of this scholarly interest.7 The scholarship on marriage has been remarkably polarizing in its definitions of and assessments of marriage as an institution. Much of the scholarship either advocates for the abolition of marriage altogether or for the replacement of marriage with domestic partnerships or civil unions for all.8 On 1. See, e.g., Ariela R. Dubler, Sexing Skinner: History and the Politics of the Right to Marry, 110 COLUM. L. REV. 1348 (2010); Martha C. Nussbaum, A Right to Marry?, 98 CALIF. L. REV. 667 (2010). 2. See, e.g., Anne L. Alstott, The Earned Income Tax Credit and the Limitations of Tax-Based Welfare Reform, 108 HARV. L. REV. 533 (1995); Edward McCaffery, Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code, 40 UCLA L. REV. 983 (1993); Shari Motro, A New “I Do”: Towards a Marriage-Neutral Income Tax, 91 IOWA L. REV. 1509 (2006); Lawrence Zelenak, Marriage and the Income Tax, 67 S. CAL. L. REV. 339 (1994). 3. See, e.g., Kerry Abrams, Immigration and the Regulation of Marriage, 91 MINN. L. REV. 1625 (2007); Jennifer M. Chacón, Loving Across Borders: Immigration Law and the Limits of Loving, 2007 WIS. L. REV. 345. 4. See, e.g., Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Society Security, and Stone, Seidman, Sunstein & Tushnet’s Constitutional Law, 89 COLUM. L. REV. 264 (1989); Kristin Collins, Administering Marriage: Marriage-Based Entitlements, Bureaucracy and the Legal Construction of the Family, 62 VAND. L. REV. 1085 (2009); Goodwin Liu, Social Security and the Treatment of Marriage: Spousal Benefits, Earnings Sharing, and the Challenge of Reform, 1999 WIS. L. REV. 1. 5. See, e.g., Anita Bernstein, For and Against Marriage: A Revision, 102 MICH. L. REV. 129 (2003); Jill Elaine Hasday, The Canon of Family Law, 57 STAN. L. REV. 825 (2004); Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform’s Marriage Cure as the Revival of Post- Bellum Control, 93 CALIF. L. REV. 1647 (2005). 6. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 IOWA L. REV. 1253 (2009); Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2 (2006). 7. See, e.g., various essays in JUST MARRIAGE (Mary Lyndon Shanley ed., 2004); see also Symposium: Abolishing Civil Marriage, 27 CARDOZO L. REV. 1155 (2006). 8. See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) (arguing that child-parent and other dependency relationships should be the subject of state recognition instead of marriage); NANCY POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE (2009) (arguing for alternatives to marriage to determine when legally enforceable responsibilities and entitlements have accrued in interpersonal relationships); ROBIN WEST, MARRIAGE, SEXUALITY, AND GENDER 205–11 (2007) (advocating universal civil unions); Alice Ristoph & Melissa Murray, Disestablishing the Family, 119 YALE L.J. 1236 (2010) (developing a theory of disestablishment, analogous to religious disestablishment, of the family whereby the government would cease to prefer some family forms over others); Laura Rosenbury, Friends with Benefits, 106 MICH. L. REV. 189, 191–92, 229 (2007) (arguing that the traditional legal divide between recognizing caregiving by family members versus friends perpetuates gender inequality, and that rather than focusing on opening marriage to more people, legal reformers should develop ways for the state to recognize nonexclusive forms of caregiving, such as friendships). 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 4 CALIFORNIA LAW REVIEW [Vol. 100:1 the other side of the debate are conservatives who wish to retain marriage but limit it to heterosexual couples9 and expansionists who also want to retain marriage but open it up to gays and lesbians.10 The most common compromise position suggests retaining marriage but also making a registry or domestic partnership option available.11 This Article approaches the issues of how to define marriage and its proper place in our legal landscape from a different perspective. Instead of asking the question of what marriage is, the Article tries to determine what marriage is not. It does so by examining when and why the law determines that a particular marriage is a “sham” or a “fraud.” Charges of marriage fraud are becoming increasingly common. For example, one company was prosecuted for arranging marriages between immigrants and U.S. citizens who had never before met and supplying these couples with evidence they could later use to convince immigration officials of the validity of their marriages, including photographs of the brides in their wedding gowns and fancy fake wedding cakes.12 Additionally, the wife of former New Jersey governor Jim McGreevey asked a court to annul her marriage, claiming she was “duped into marriage by a closeted gay man who needed the cover of a wife to advance his political career.”13 A major airline sued nine of its pilots for fraudulently divorcing and remarrying their spouses in order to get early lump-sum payouts of their pensions.14 Utah recently codified common law marriage in order to be able to prosecute fundamentalist Mormons for living a polygamous lifestyle while identifying themselves as “single” on their welfare applications.15 9. See, e.g., Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 HARV. J.L. & PUB. POL’Y 771 (2001). 10. See, e.g., William N. Eskridge, Foreward: The Marriage Cases—Reversing the Burden of Inertia in a Pluralist Constitutional Democracy, 97 CALIF. L. REV. 1785 (2009). 11. See, e.g., LINDA C. MCCLAIN, THE PLACE OF FAMILIES 198–205 (arguing that government should continue to support marriage and expand it to include same-sex couples but should also develop a registration system to support and recognize a broader range of relationships); Elizabeth S. Scott, A World Without Marriage, 41 FAM. L.Q. 537, 545–46 (2007) (arguing a position similar to that of McClain, supra); Barbara Stark, Marriage Proposals: From One-Size-Fits-All to Postmodern Marriage Law, 89 CALIF. L. REV. 1479 (2001) (advocating a “menu of options” approach); Edward Stein, Looking Beyond Full Relationship Recognition for Couples Regardless of Sex: Abolition, Alternatives, and/or Functionalism, 28 LAW & INEQ. 345, 371 (2010) (same). But see Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758 (2005) (critiquing both marriage and domestic partnership alternatives as not providing a wide enough range of options); James Herbie DiFonzo, Unbundling Marriage, 32 HOFSTRA L. REV. 31, 58–59 (2003) (analyzing “bundles” of benefits that make up marriage and considering which ones are necessary); Vivian Hamilton, Mistaking Marriage for Social Policy, 11 VA. J. SOC. POL’Y & L. 307, 370–71 (2006) (identifying functional components of marriage and arguing that only its caretaking and economic support functions deserve state support). 12. Marriage Fraud Sting Nets Arrests in Florida, N.Y. TIMES, May 10, 2008, at A13. 13. McGreeveys Reach Deal on Custody of Daughter, N.Y. TIMES, May 9, 2008, at B4. 14. Plaintiffs’ Original Complaint and Application for Declaratory and Injunctive Relief, Cont’l Pilots Ret. Plan Admin. Comm. v. Brown, 4:09-CV-01529 (S.D. Tex. May 20, 2009). 15. UTAH CODE ANN. § 30-1-4.5 (LexisNexis 2007); Ryan D. Tenney, Tom Green, Common- law Marriage, and the Illegality of Putative Polygamy, 17 B.Y.U. J. PUB. L. 141, 148–49 (2002) (discussing legislative history of Utah statute). 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 2012] MARRIAGE FRAUD 5 Although in each of these cases the charge is marriage fraud, no single legal marriage fraud test exists. Instead, as this Article reveals, an astonishing array of legal doctrines exist across many fields, all professing to regulate marriage fraud. There are marriage fraud doctrines in family law, tax law, social security law, welfare law, immigration law, and pension law. Many of these doctrines have developed only recently, as the law has grafted more and more benefits onto marital relationships. As a result, courts have increasingly found themselves playing the role of the “marriage police,” trying to determine whether a couple is “really” married or whether, instead, the couple married solely for the extensive benefits attached to marriage. Husbands and wives have also found themselves in the awkward position of trying to demonstrate that they married in good faith by producing documentation of their marriage, such as joint bank accounts and co-owned property, in addition to evidence of a shared life together and even evidence showing that they married for love. Scholars have written about marriage fraud before, but always from within the context of a specific legal field. For instance, family law scholars will be familiar with the “annulment-by-fraud” doctrine that has been pervasive since the nineteenth century.16 Scholars in other fields, such as tax law, are certainly aware that marriage is sometimes the basis of a bonus or an entitle- ment and that it could be invoked fraudulently. But no one has observed that marriage fraud doctrines exist across doctrinal boundaries, attempted to make sense of these doctrines as a whole, or developed a coherent explanation of why marriage fraud doctrines have proliferated so extensively in recent years. Marriage fraud doctrines, this Article shows, vary considerably depending on the goals of the benefit a person is attempting to use marriage to obtain. The fraud doctrines, in other words, tell us what work the law is asking marriage to do. A close examination of these doctrines and an evaluation of their origin, development, and current utility can tell us something about marriage’s capacity to regulate the distribution of social benefits. This Article argues that two basic types of marriage fraud doctrines exist. The first, the traditional annulment-by-fraud doctrine developed by family court judges in the nineteenth and early-twentieth centuries, is fundamentally a contract doctrine. A defrauded spouse could rescind a marriage contract through the process of annulment if he or she could demonstrate fraud.17 The injured party was the other party to the contract—the spouse—not the public. Because marriage was thought of as a form of privatized welfare, the only legal space for sex and procreation, and a permanent relationship, the availability of annulment- by-fraud was severely limited. Only fraud going to the “essentials” of the marriage—lies about sex or procreation—qualified a marriage for annulment. 16. Albert Momjian, Annulment, in 1 FAMILY LAW AND PRACTICE §§ 5.02, 5.03 (Arnold H. Rutkin ed., 2003). 17. Id. 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 6 CALIFORNIA LAW REVIEW [Vol. 100:1 In the mid-twentieth century, the law changed dramatically as the second basic type of marriage fraud evolved. The marriage fraud doctrines that proliferated during this time were not contractual in nature, but more akin to criminal law or civil penalties. The victim was not the defrauded spouse, but the public. This Article argues that the reasons for the shift from a solely contract-based doctrine were threefold: the attachment of substantial public benefits to marriage, the rise of no-fault divorce, and the decriminalization of nonmarital sex and procreation. In short, because marriage became easier to get in and out of, and because there were more benefits attached to it, people had greater incentives to use it instrumentally. These new fraud doctrines vary from very simple rules asking that a couple demonstrate the existence of a valid marriage to the elaborate functional tests we see in immigration law and military benefits law, where the couple must demonstrate through extensive documentary and testimonial evidence that they intended to “establish a life together.” This Article provides a taxonomy of these various tests and theorizes that the more at stake for the public and the easier marriage is to exit while still retaining a benefit, the more intrusive and elaborate the test is likely to be. It also analyzes how marriage fraud might harm the public and assesses the possible social costs of policing it effectively. The Article thus demonstrates that lawmakers became increasingly anxious about marriage fraud during the twentieth century and that much of this anxiety resulted from the attachment of numerous benefits to an institution that was no longer ubiquitous or permanent. But the Article does not conclude that we should therefore do away with marriage fraud doctrines. Rather, it suggests that these various doctrines might lead us to a critical insight about the legal function of marriage today. Simply put, we are asking marriage to do too much. Marriage has become the receptacle for all sorts of attempts to solve social problems, but it is no longer a robust enough institution to serve this function. Thus, the question scholars and lawmakers should be asking is not whether we should have marriage but, instead, what marriage is capable of doing. Understanding marriage as a site for solving social problems provides a novel approach to the question of whether to abolish marriage altogether or let new groups in. Rather than adhering to either school of thought, this Article takes the position that we should isolate and disaggregate the various state interests in marriage and then reconfigure marriage to retain those features relevant to salient interests and to discard those relating to interests that would be better dealt with elsewhere. This approach is far less risky than doing away with marriage altogether and yet prevents us from further grafting benefits onto marriage that do not belong there and that the institution may not be able to sustain. While this approach does not solve the problem of whether same-sex couples or other groups fit within the rubric of marriage, it does lower the stakes for both sides of that debate. If marriage were no longer the primary 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 2012] MARRIAGE FRAUD 7 locus of public benefits, then it would no longer be the primary target of civil rights reforms or, for that matter, state regulation of relationships. Part I of this Article analyzes the doctrine of fraud-based annulments. It locates this doctrine within the broader domain of contract fraud and shows why marriage fraud doctrine deviates from contract fraud principles. Part II analyzes the newer marriage fraud doctrines tied to various public benefits and creates a taxonomy of the array of methods that courts and legislatures have developed to identify and prevent fraud, including what it terms “formal marriage,” “marriage-plus,” “functional marriage,” and “integrated” tests. Part III shows why the singular doctrine of marriage fraud proliferated into multiple overlapping and contradictory doctrines during the twentieth century and explores how these new doctrines conceive of the public as the victim. Part IV examines the social costs associated with the ways these new doctrines police a marriage. It also explores how a more cohesive understanding of the disparate definitions of marriage revealed in the previous Parts could help lawmakers disaggregate the elements of marriage and consider ways to reconfigure them to carry out the work marriage is actually capable of doing for the state today. I. MARRIAGE FRAUD AS CONTRACT FRAUD Traditional family law—the state law of marriage and divorce—treats marriage fraud as private and contractual, concerning solely the two spouses and not outside parties. The doctrine gives one spouse the opportunity to seek an annulment if the other spouse committed fraud in inducing the marriage.18 An annulment is analogous to rescission in the contract context: it is a judicial decree that the marriage, in effect, never occurred.19 A fraudulent marriage is voidable, not void. In other words, only the defrauded party can attack the marriage by requesting an annulment.20 Third parties have no claim.21 This doctrine persists today, but was largely developed in the nineteenth and early twentieth centuries.22 A. The “Essentials” Test Annulment may be analogically similar to rescission, but it comes with an important difference. The courts crafting the doctrine of annulment-for-fraud 18. See LESLIE J. HARRIS ET AL., FAMILY LAW 172, 78 (4th ed. 2010). 19. See Momjian, supra note 16, §§ 5.02, 5.03. 20. Id. 21. Id.; see also Estate of Dito v. Dito, 2008 WL 821694 (Cal. Ct. App. Mar. 28, 2008) (holding that grandson of deceased husband has no standing to challenge a marriage as fraudulent). 22. See JOANNA L. GROSSMAN & LAWRENCE M. FRIEDMAN, INSIDE THE CASTLE: LAW AND THE FAMILY IN 20TH CENTURY AMERICA 180–87 (2011) (tracing the development of annulment law); HENDRIK HARTOG, MAN AND WIFE IN AMERICA 99 (2000) (discussing annulment in nineteenth- century family law). 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 8 CALIFORNIA LAW REVIEW [Vol. 100:1 narrowly limited the availability of the claim. Only fraud that goes to the “essentials” of the marriage can undo a marriage. In the vast majority of the cases, fraud that goes to the “essentials” involves misstatements or omissions about one party’s ability or willingness to engage in sexual intercourse, and, specifically, sexual intercourse leading to procreation.23 For example, lying about a known inability to conceive is fraud sufficient to obtain an annulment.24 So is lying about one’s ability to have intercourse.25 Because even people who are capable of having intercourse and capable of procreation might choose not to engage in either, courts have also granted annulments based on fraud where a person represents that he or she is willing to consummate the marriage but has a secret desire not to do so,26 or represents willingness to have children but does not intend to have them.27 In this class of cases, courts have held that no explicit representation of willingness to consummate or have children is 23. There are some exceptions. New York uses a “materiality” test that asks whether the fraud went to something “vital” to the marriage, and sometimes grants annulments under this test in cases not involving the essentials. See, e.g., Kober v. Kober, 211 N.E. 2d 817, 818 (N.Y. 1965) (granting annulment where husband concealed his Nazi past). New Jersey distinguishes between unconsummated and consummated marriages: unconsummated marriages can be annulled for fraud under a materiality test; consummated marriages can be annulled only for fraud going to the essentials. Bilowit v. Dolitsky, 304 A.2d 774, 775 (N.J. Super. Ct. Ch. Div. 1973). New York’s unusually broad test may be explained by its historically narrow grounds for divorce; until 1967, divorces were available only for adultery, so annulment doctrine may have provided “wiggle room” to end marriages where the defrauding spouse stubbornly refused to misbehave. Laurence Drew Borten, Note: Sex, Procreation, and the State Interest in Marriage, 102 COLUM. L. REV. 1089, 1096 n.33 (2002). 24. See Vileta v. Vileta, 128 P.2d 376 (Cal. Ct. App. 1942) (granting annulment for fraud where wife did not disclose known infertility); Turner v. Avery, 113 A. 710 (N.J. Ch. 1921) (granting annulment where wife did not tell husband she had undergone an operation rendering her barren); Williams v. Williams, 11 N.Y.S.2d 611 (Sup. Ct. 1939); cf. Irving v. Irving, 134 P.3d 718 (Nev. 2006) (denying annulment where forty-two-year-old wife had repeated miscarriages, based on lack of evidence of her infertility, lack of evidence that she knew she was infertile at time of marriage, and because husband should have known a forty-two-year-old woman might have difficulty conceiving but married her anyway). 25. See Stegienko v. Stegienko, 295 N.W. 252 (Mich. 1940) (granting annulment granted where wife, because of her physical condition, did not intend to have “normal marital intercourse” or bear children); cf. Manbeck v. Manbeck, 489 A.2d 748 (Pa. 1985) (granting annulment based on wife’s impotence—but not based on fraud—where impotence consisted of a “psychological block” against intercourse that led the marriage to go unconsummated for twenty-four years). 26. Rathburn v. Rathburn, 292 P.2d 274 (Cal. Ct. App. 1956) (granting annulment where wife secretly intended not to consummate marriage); see also Hyslop v. Hyslop, 2 So. 2d 443 (Ala. 1941) (granting annulment where husband claimed to have changed his mind about wanting to consummate marriage on the car ride home from the ceremony; court inferred from his actions that his “vows were taken without any bona fide purpose to keep them”); Zerk v. Zerk, 44 N.W.2d 568, 568 (Wis. 1950) (granting annulment where wife promised to “perform the duties of a wife and specifically to bear children” but then refused to consummate the marriage). 27. See, e.g., Mothershead v. Mothershead, No. B177926, 2005 WL 1460412 (Cal. Ct. App. June 22, 2005) (granting annulment where husband promised to have children but did not want to do so); Sabbagh v. Copti, 674 N.Y.S.2d 329 (App. Div. 1998) (granting annulment where husband stopped having sex with wife after her birth control injection wore off and told her that he had never loved her and never intended to have children with her); cf. Wolens v. Wolens, No. 99-FC-006390, 2004 WL 1909348 (Ky. Ct. App. Aug. 27, 2004) (denying annulment on procedural grounds, but allegation was that husband intentionally misled wife about desire to have children). 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 2012] MARRIAGE FRAUD 9 necessary; the promise to engage in “normal” and “natural” intercourse is implicit in the promise to marry, and in making such a promise, a person is making factual representations of capacity and intent.28 In sharp contrast, “[f]raudulent misrepresentations . . . as to birth, social position, fortune, good health, and temperament, cannot . . . vitiate [a marriage] contract.”29 This prohibition has been applied widely, even in cases that would almost certainly meet the requirements to rescind a contract for fraudulent misrepresentation. In one Massachusetts case, Chipman v. Johnston, the husband claimed to be in the mining business, to be related to a prominent family conveniently located far away in Alaska, and to have substantial money in a bank in Spokane, Washington, all of which turned out to be false.30 The court denied the wife an annulment because social standing was irrelevant to the essentials of the marriage: He was the human being whom she intended to marry. He did not impersonate another. Even though she was deluded as to his name and place of residence, that did not affect his personality. His representations as to relatives in another part of the country merely affected at most his social standing.31 In another case, Beckley v. Beckley, a husband met his future wife through a match-making service.32 She claimed to be a Sunday school teacher and even forged a note from her pastor.33 After the wedding, the wife induced him to sell her his house and give her $235.34 She promptly kicked him out, saying, “Get a move on you and move quick or I’ll blow you into eternity.”35 When the husband sought an annulment, the court was unsympathetic. “There was neither fraud, error or duress as known to the law,” the court explained. “He got possession of the same flesh and bones he bargained for . . . the marriage was consummated; they lived together as husband and wife; they are husband and wife.”36 28. Maslow v. Maslow, 255 P.2d 65, 68 (Cal. Ct. App. 1953) (granting annulment for fraud because promise to have “normal” and “natural” intercourse is “implicit” in promise to marry); see also Gewirtz v. Gerwitz, 66 N.Y.S.2d 327 (App. Div. 1945) (denying wife annulment because she waited four years to complain that husband refused to have unprotected sex because children would “annoy him,” but noting in dicta that “implicit in the marriage contract is the representation that the parties will have normal and natural relations and that they will not do anything which will frustrate the normal and natural result of those relations”). 29. Nerini v. Nerini, 11 Conn. Supp. 361, 365 (Super. Ct. 1943). 30. Chipman v. Johnston, 130 N.E. 65, 66 (Mass. 1921). 31. Id. 32. Beckley v. Beckley, 115 Ill. App. 27, 28 (1904). 33. Id. 34. Id. 35. Id. 36. Id.; see also Heath v. Heath, 159 A. 418 (N.H. 1932) (denying annulment where husband claimed to have “sober and industrious habits and sexual virtue, savings and law-abiding conduct” but had been convicted of adultery); Johnston v. Johnston, 22 Cal. Rptr. 2d 253, 254 (Ct. App. 1993) (denying annulment where before marriage, husband was “just very polite. Very nice. Very respectful to [wife]. Clean-shaven. Bathed. Just very nice,” but after wedding, he “never treated [wife] with 01-Abrams.doc (Do Not Delete) 1/17/2012 12:40 PM 10 CALIFORNIA LAW REVIEW [Vol. 100:1 B. Explaining the “Essentials” Test Why would courts have so limited the availability of annulment-for- fraud? Three interlocking reasons stand out as particularly important: (1) marriage’s role as a form of privatized welfare; (2) the permanence of marriage; and (3) marriage’s role as the exclusive site for state-sanctioned sex and procreation. First, through most of the nineteenth century and much of the twentieth, marriage functioned as the primary way to deal with dependency. As such, it was not merely contractual, but a hybrid institution that encompassed aspects of both status and contract. The agreement to marry was contractual in that it required the consent of each party, but once consent had been granted, it resulted in a legal status “affecting both the parties and the community.”37 As the Supreme Court put it in the famous case of Maynard v. Hill, once two people enter into a marriage, “a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage.”38 Once a couple was married, certain benefits and obligations automatically attached to the status, including the right of a wife to her husband’s support, the right of a husband to the services of his wife, state involvement in dissolution of the union, and rights of each spouse in the property of the other.39 “Society” had a “great interest” in maintaining this status, for marriage ensured that someone would provide men with services and that someone would provide women with financial support.40 Making annulment easily available would have had disastrous economic consequences for many women.41 Second, marriage was also largely permanent at this point in history. Divorce was either unavailable or difficult to obtain.42 If a commercial contract is breached, the nonbreaching party is generally entitled to expectancy damages.43 There was no directly analogous remedy in marriage; the closest remedy was that an “innocent and injured” spouse might be entitled to a fault- respect . . . and on many occasions, unshaven,” as well as lazy, bad in bed, and an alcoholic). 37. Chipman v. Johnston, 130 N.E. 65, 66 (Mass. 1921). 38. Maynard v. Hill, 125 U.S. 190, 211 (1888). 39. See Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373, 1389–92 (2000) (describing incidents of coverture); Reva B. Siegel, Home as Work: The First Women’s Rights Claims Concerning Women’s Household Labor, 1850–1880, 103 YALE L.J. 1073, 1082 (1994) [hereinafter Siegel, Home as Work] (describing economic aspects of coverture). 40. Marshall v. Marshall, 300 P. 816, 817 (Cal. 1931). 41. Because an annulment meant that a valid marriage had never happened, it also meant that there was no marital property to be divided and that a wife would not be eligible to receive alimony from her ex-husband. Recently, some states have amended this rule. See, e.g., CONN. GEN. STAT. § 46b-60 (2009); OR. REV. STAT. §§ 107.095, 107.105 (2009). 42. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 142–46 (3d ed. 2005) (discussing evolution of divorce law). 43. RESTATEMENT (SECOND) OF CONTRACTS § 347 (1981).