LIMITED PURPOSE MARRIAGES
| Date | 01 March 1982 |
| Published date | 01 March 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02475.x |
LIMITED
PURPOSE MARRIAGES
THE
CONCEPT
A
LIMITED
purpose marriage occurs when a man and
a
woman
enter
a
full status legal marriage and yet at that time one or both
of
them do not intend to fulfil some or all of the important legal
and social duties culturally expected of a normal marriage. That is,
although the parties consent to the ceremony or commencement
of the marriage, they do not fully consent to its cultural and legal
functions.’
Apart from the label of
“
limited purpose marriage,” these kinds
of marriages have also variously been called
‘‘
sham,”
“
illusory,”
“
fictional,”
“
purported,”
“
pretended,”
“
ostensible,”
“
colour-
able
”
marriages,
“
marriages of convenience,” marriages
of
“
con-
ditional consent,”
“
mental reservation,”
“
defective intention
”
and
“
in name only.” Obviously, the suggested description raises the
difficult question of what are the essential or core functions of
marriage
in
a given time and culture.*
One of these labels might be attached where,
at
the time of mar-
riage ceremony or commencement,Y the parties have clear unilateral
or
bilateral reservations about sexual intercour~e,~ cohabitation
or procreation. Or, one or both may intend to
marry
solely or pre-
dominantly for the purpose of circumventing or satisfying immi-
gration or emigration laws,6
a
joke, legitimising children,’ acquiring
*
Senior Lecturer in Law, University
of
Sydney.
1
For helpful introduction see
H.
H.
Clark,
Law
of
Domesfic Relarions
(1968),
pp.
114-118
;
P.
M. Bromley,
“
The Validity of
‘
Sham Marriages
’
and Marriages Pro-
cured by Fraud
”
(1969)
15
McGill L.J.
319;
E. M. Clive and J.
G.
Wilson,
Husband
and Wife
(1974),
pp.
58-67;
M. Rheinstein,
Marriage Stability, Divorce and rhe Law
(1972).
pp.
21,
174-175;
J.
Jackson,
The Formation and Annulment
of
Marriage
(2nd ed.,
1969),
pp.
290-297;
notes in
(1953) 20
U.Chi.L.Rev.
710; (1956) 69
Harv.L.Rev.
768;
H.
R. Hahlo,
‘‘
Nullity
of
Marriage
’*
found in
Srudies in Canadian
Family
Law
D. Mendes da Costa (ed..
1972),
Vol.
2,
pp.
669-673;
A.
A.
M.
Irvine,
“Sham Marriages”
1963
S.L.T.
93;
W.
Rogers, “Sham Marriages”
(1974) 4
Fam.Law
4;
B.
J.
Leidigh, “Defense
of
Sham Marrf?ge Deportations”
(1975)
8
U.Cal. Davis L.R.
309;
for Australian cases, see Wade, Marriages
of
Convenience
”
(1980)
11
Fed.L.R.
84.
a
H.
Swinburne,
A Treatise on Spousals
(published in
1686;
written before
1621;
republished
N.Y.
:
Garland,
1978),
Sect.
12,
pp.
140-148.
3
The distinction between ceremony and commencement is mentioned here
to
emphasise that a
de facr,o
cohabitation marriage which today has limited legal status
may also sometimes only be entered into
for
a limited purpose: see
posr,
note
12.
4
Morgan
v.
Morgan
[1959]
P.
92;
Scott
v.
Scolf
[1959]
P.
103.
5
Brodie
v.
Brodie
[1917]
P.
271.
6
e.g.
C.
S.
Lewis and Joy Davidman;
U.S.
v.
Rubenstein,
151
F.
2d
915
(2nd
Circ.
1945)
Silver
v.
Silver
[1955]
2
A11 E.R.
614; El9541
P.
258;
Szechrer
v.
Szechrer
(19701 3
All
E.R.
905;
Kokkalas
v.
Kokkalas
(1965)
50
D.L.R.
(2d)
193;
Johnson
V.
Smith
(1968) 70
D.L.R.
(2d)
374,
overruled by
Iantsis
v.
Papatheodrou
1
For footnote,
see
p.
160.
159
160
THE
MODERN
LAW
REVIEW
[Vol.
45
money," sexual gratificati~n,~ or minimising taxation.'O
To
this list
can be added
:
"The marriage might be performed
as
a result of a dare,
or
solely to win
a
bet, to obtain an engagement open only to
married persons, to fulfil a promise made to a dying person,
to comply with the terms of
a
settlement conferring gifts sub-
ject to the beneficiary's marriages and
so
on. Marriages have
been celebrated solely in order
to
avoid military call-up, in one
case it seems in order to avoid court-martial."
l1
In one sense, such marriages are at the opposite end of the spec-
trum to
de
facto
marriages.
A
de
fucto
marriage, to
a
sociologist,
functions
like a marriage, but because it did not begin with the
socially and legally prescribed ceremony,
is
only given a limited
legal status by the law.12 Whereas a limited purpose marriage, from
a
sociologist's viewpoint, often does not function like
a
marriage
at all,13 or perhaps functions as such only for
a
very short time.14
but because it began
with
a legally prescribed ceremony, it has
often been given full legal status by the law.
(1971) 15
D.L.R.
(3d)
53;
Gardner
v.
Gardner
(1970) 75
W.W.R.
667;
Feiner
V.
Demkowirz
(1974) 42
D.L.R.
(3d) 165;
In rhe murriage
of
Deniz
(1977) 31
Fed.L.R.
114; (1977)
F.L.C.
90-252;
In rhe marriage
of
Suria
(1977)
F.L.C.
9C-305;
Leidigh,
ante,
note
1;
R.
v.
Cahill
(1979) 22
A.L.R.
361.
See
post,
notes
47-56.
It is not
clear how far the alternative device of limited purpose adoptions, has been, or will
be used to facilitate migration by refugees.
7
Bell
v.
Graham,
13
Moore
P.C.
242; (1859) 15
E.R.
91
(marriage
to
placate an
irate brother-in-law valid).
Cf.
M'lnnes
v.
More,
1782
(Scottish marriage to prevent
disgrace arising from pregnancy invalid); discussed in
Dalrymple
v.
Dalrymple
(1881)
2
Hag.Con.
54. 101-102;
Dagg
v.
Dagg and Speake
(1882) 7
P.D.
17.
8
R. Brandon,
The Dollar Princesses
(1980);
Sbnfeld
v.
Shonfeld,
260
N.Y.
477,
184
N.E.
60
(1933)
(false statements by woman concerning her wealth; marriage
annulled);
Ryan
v.
Wurmbrcutd-Stuppach Ryan
156
Misc.
251, 281
N.Y.S.
709 (1935)
(woman married solely to obtain husband's wealth; marriage annulled on ground
that woman had deceived petitioner about her feelings of love towards him!);
Woronzofl-Daschkofl
v.
Woronzofl-Daschkos,
303
N.Y.
506; 105
N.E.
(2d)
877
(1952)
(fortune-hunting male married solely to obtain money; marriage consum-
mated;
no
annulment granted);
Kelly
v.
Kelly
(1933) 148
L.T.
143
(marriaga cere-
mony
undertaken for business convenience held void
for
mistake); Rheinstein
ante,
note
1,
pp.
91-101.
The writer understands that
in
Sydney, the compulsory counselling
of broken short-term marriages under F.L.A.,
s.
14 (6),
has revealed a substantial
number of social security and immigration marriages.
9
C.
V.
C.
[1942]
N.Z.L.R.
356.
10
e.g.
marrying and if necessary divorcing, in order to avoid stamp duty
on
a
transaction between male and a female under
s.
90
of the Family Law Act
1975
(Aust.);
cf.
formerly the Swedish
"
tax-divorce
"
whereby a married couple divorced
and secretly moved back together after their new single status had been accepted
by the taxation authorities;
J.
W.
F.
Sundberg,
"
Recent Changes in Swedish Family
Law
:
Experiment Repeated
"
(1975) 23
Am.J.Comp. Law
34, 38-39.
11
J.
Jackson
ante,
note
1,
p.
290.
Cases are cited from many jurisdictions as
illustrations.
12
That is, fewer legal rights and duties than a full status
de lure
marriage;
e.g.
D. Pearl,
"
The Legal Implications
of
a Relationship Outside Marriage
"
(1978) 37
Cam.L.J.
252;
J.
H.
Wade,
"
Void and de Facto Marriages
"
(1981) 9
Sydney L.Rev.
356;
De Facto Marriages in Australia,
(1 981).
13
e.g.
H.
M. Johnson,
Sociology:
A
systematic Introduction
(1960),
pp.
146174.
14
e.g. In the marriage
of
Suria
(1977)
F.L.C.
90-305
(three weeks of cohabitation;
marriage valid);
C.
v.
C.
[I9421
N.Z.L.R.
356
(two weeks of cohabitation; marriage
valid).
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