Understand the legal risks before saying “yes”
(This article originally appeared on The conversation.)
When a couple decide to get married, they often say that they are marrying their best friend.
But what if two true best friends – without sex or even feeling in love – simply decide to get married?
Friends, the New York Times recently reported, are beginning to “marry in a platonic fashion, vowing never to leave each other for better or for worse.”
These “non-marital couples” – mutually supportive relationships of friends or relatives that lack a sexual component – challenge prevailing social and legal norms about what constitutes the family.
I recently wrote about how these non-traditional couples might one day gain legal recognition – and therefore tax breaks and benefits for couples – in courtrooms across the United States, Canada, and the United States. Europe.
But legal recognition, to date, does not exist. So there are risks in saying “yes” to a friend.
The legal pitfalls of platonic marriages
Two friends can get married for a multitude of reasons.
They might not believe in the traditional heterosexual family and want to challenge it. They might just think that their best friend is the person they want to share chores, meals, and finances with. Or they might also believe that as law-abiding taxpayers they should also be able to receive family benefits that other married couples receive, such as filing their tax returns jointly.
At the moment, however, friendship is not recognized by law. And only a handful of states allow friends to gain legal recognition by registering as national partners. These include Maine, Maryland, and Colorado.
However, two consenting adults, regardless of their gender, can get married in the United States. Two friends can therefore quite easily get out. But they can’t admit that they’re just friends.
Legally speaking, this could be considered a fictitious marriage.
Because of this, two friends who get married and receive a marriage certificate can still face considerable risk. They face criminal and civil penalties on grounds of “marriage fraud” if a federal or state agency is suspicious of the union. And they can also be denied the benefits usually granted to married couples.
Kerry Abrams, the current Dean of Duke University School of Law, described various doctrines developed in welfare law, social security law and immigration law during the 20th century to specifically detect the fake or simulated marriages. Whether it’s two people marrying for citizenship, seeking housing allowance, or marrying before trial so they don’t have to testify against each other, the findings of the courts are the same: their marriage is a sham, and individuals face criminal or civil liability and termination of benefits.
Detecting a fictitious marriage is not easy. And the courts recognize that there are many reasons that can motivate a person’s decision to marry that are not “romantic”, such as the desire to declare income jointly to obtain tax exemptions.
Therefore, courts consider whether there is what they call a “specific unlawful purpose”. As one judge wrote in his ruling in a case involving a couple who fraudulently married to obtain housing allowance:
“It is not the absence of a perfect or ideal motivation of ‘love, honor and love’ on the part of the parties that makes the consequences flowing from the actions of the appellant in the case in which we are involved criminal. seized; rather, it is the affirmative presence of an illicit – an intention to fraudulently acquire a government payment stream – that does so. “
Two married friends will have to demonstrate in court that they did not have the “singularly targeted illicit” objective of acquiring some sort of government advantage. But they will have a hard time doing it. This is because when the courts seek to understand whether the couple intended to live together as husband and wife, they will assume the family standard in which the couple have a sexual relationship.
Since there is no romantic relationship, the default judges will likely argue that the friends got married just to play with the system.
Can the Constitution help?
At the constitutional level, there is this decision which could give some hope to non-marital couples: Department of Agriculture v. Moreno, also known as the “Hippie Affair”.
The Moreno case involved a group of impoverished and unrelated people living under one roof who at one point were denied food stamps by the government. The government argued that its goal was fraud prevention: in its opinion, households with unrelated people – such as friends – are more likely to commit fraud to illegally obtain government benefits.
The Supreme Court, however, ruled in favor of the household in 1972. It concluded that minimizing fraud is a valid interest, but that the government could do so through other more specific measures, instead of simply denying benefits to everyone. group of people. .
However, there are two issues with using this decision as a precedent to open the door to allow two friends to marry. First, the result was largely motivated by what the Supreme Court found to be the “cynical” motives of the legislature, which, by amending the law, had singled out “hippies” as not deserving of food stamps. Second, it is not about marriage per se; it is a question of who can have access to a specific legal advantage: food stamps.
So I would say that the constitutional decision that says something about the fate of Platonic marriages is not Moreno, but Obergefell v. Hodges, the Supreme Court ruling on same-sex marriage.
The idea of marriage put forward by Obergefell is based on rather traditional family norms. The plaintiffs in the Obergefell case – a gay couple – were, in all respects other than their same sex, in agreement with what most Americans consider to be a married couple. Their relationship was sexual, exclusive, romantic, nuclear, and involved two people. They were also committed to each other for life.
To show that same-sex marriage is a subset of the broader fundamental right to marry, LGBTQ lawyers have chosen to strengthen pre-existing norms of marriage and family. They gathered evidence showing that a gay or lesbian couple had the same ability to love, be intimate, and raise children. Friends don’t necessarily adhere to these standards: they aren’t intimate and aren’t necessarily interested in raising children, even if some of them are.
Ironically, it appears that LGBTQ activism has made access to marriage much more difficult for other non-traditional families. Polyamorous and polygamous relationships are one of them.
And, yes, friends too.