DEAR MRS MACAULAY,
I'm wondering if a Jamaican man who married an American woman just to get in the country, who never had sex with the woman and never lived together, or talk to each other now, can now remarry someone he loves? He has sorted out all his paperwork and has been legal for years.
If a Jamaican or any citizen marries an American woman just to ensure that he could enter the United States (US) and obtain the appropriate visas and has become either a permanent resident or a citizen as a result, he is still married to that woman and if he marries some other person now, he would be guilty of bigamy. You see, this man went through a legal marriage ceremony in which he bound himself, and so did the woman, to abide by the legal promises they made to the marriage officer and to their witnesses (which should have been a minimum of two) that they would love, honour and cherish each other, or words to that effect, and they were declared man and wife and signed the marriage register, evidencing their legal marriage contract. The fact that it was a fraudulent marriage ceremony knowingly entered into by both parties but, I assume, unknown to the marriage officer, does not change the fact that a legal marriage ceremony occurred. Though I have used the words 'fraudulent marriage', it is not defined as such in the Marriage Act and is not an offence. The offences in the Act deal with marriage ceremonies which go through with one party knowing that it is in law void, but unknown to the other; or impersonates another person; or uses a false name with the intention of fooling the other party to the marriage ceremony; or the person who conducts the ceremony is not a marriage officer; or an actual marriage officer issues a false official certificate or attestation, which of course is an offence.
So this Jamaican man and the American woman both went through a legal marriage ceremony by lying, both knowing that they had no intention to actually be in fact or in law a married couple. This, however, does not fall within any of the actions and conducts designated as offences in the Marriage Act. Then, most importantly for this man, what they did does not fall within the provision or designation of void marriages. Void marriages are clearly provided in the Act as being, first, when both parties to a marriage knowingly and wilfully agree to go through a marriage ceremony before or conducted by a person who is not a marriage officer, or without the presence of the required two witnesses in addition to the marriage officer. These the Act says “shall be void”. Secondly, if either of the parties of a solemnised marriage is under age 16, the marriage “shall be void”; or third, when the parties to the marriage are within the prohibited degrees of blood relationships or familial status as provided by the law of England.
The Act goes further and says that marriages which have actually been solemnised and are otherwise lawful cannot be declared void even on the ground that any conditions directed by the Act that should be observed have not been observed.
What then is the result of the marriage of the Jamaican man based on what I have stated above? The answer is that he is still married to the American woman, even if they never had sex, never lived together, or even talk to each other. They went through, or solemnised, a legal marriage ceremony for a purpose other than the usual. They entered into a legal contract. The legal contract of a marriage can only be terminated by death of one party or by a decree of the dissolution of the marriage, ie, divorce. A decree of nullity (annulment) is for void or voidable marriages. This man, therefore, must apply for a divorce which he should have done long ago. He should be aware that if he or the woman are found out by the US immigration authorities, they would be in trouble because they clearly committed immigration offences there, and his US status would be reversed, which would be the least of his legal woes.
Be this as it may, he really should divorce the woman. He should, at least, now that he wishes to marry someone he loves, try to clean up his background by getting divorced legally and then go on with his love marriage.
I hope I have clarified the position for him.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.