Immigration Fraud May Not Be Marriage Fraud

Wife [W] met Husband [H] through an online dating site.  W is an American citizen living in California.  H is a Jamaican citizen.  After a few months of online communications, W flew to Jamaica to meet H.  They fell in love and got married in June of 2015.  W returned California, and filed for a two-year conditional visa for H.  The visa was approved in 2016, and H moved in with W in California.

According to W, what she didn’t know about H was that he was only interested in moving to the United States.  He wasn’t interested in marriage.  In fact, he had girlfriends in Jamaica after he married W.  He continued his behavior after he moved in with her too.  At one point, H was jailed for domestic violence during an argument they had regarding his behavior.

While H was in jail (he pled no-contest and was sentenced to six months in jail) W found texts from other women on his cell phone.  She also found text messages to his mother in Jamaica, “Me na lef, me na lef til me get my rass papers” and “Cody n u affi f**k reach.”   W interpreted these to mean H was “not leaving [W’s] house until he gets his papers, and “his brother and his mom has to reach the United States.”  H also texted his girlfriend, “By right [W] should treat me better but immigration will look at it n I can get divorce quicker  [¶] . . . [¶]  I have rights to here as she signed for it[.]  [¶] . . . [¶]  If I left immigration gonna be after me. . . [¶] Just waiting papers then I can move[.]”

After the restraining order was lifted, H moved back in with W.  W said she allowed to him to move back in because he didn’t have any other place to go.  They also renewed their sexual relationship during this time.

Less than a month later, W came home and found H in bed with another woman.  W filed for divorce or nullity of marriage due to fraud.  (H’s intent at the time he entered into the marriage was not based on love, but his desire to get legal entry into the United States.)

H said he never cheated on W while he was in Jamaica, and he married W because he loved her.

The trial court found for W and granted her an annulment.  “…[The] Court finds that shortly after, within one year or less of coming to the U.S., [H] engaged in two relationships with women external to his marriage.  And the law is clear that a spouse is entitled to more than mere cohabitation with the other, and that the spouses owe one another a duty of fidelity and duty to live with one another wholly and maintaining that confidence with one another throughout the time of their marriage…”  H appealed, and the Appellate Court reversed.

According to the Appellate Court, California Family Code Section 2210, provides a marriage may be nullified if “[t]he consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.”  “A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relation…”

Here, W became aware of H’s affairs and his real intentions for marrying her, but continued their marital relationship with him.  Therefore, she was not entitled to a nullity of marriage.

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