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Edit: the question wasn't worded as well as it could be. I should clarify that I'm aware sham marriages are illegal. For the purposes of this question, let's assume law enforcement doesn't realize or can't prove it's a sham.

Note: I was in here a month or two ago asking about a similar topic, but to re-iterate, I'm a writer trying to do some research and figure out logistics for a story I'm working on, so this all may sound crazy.

Say we have two characters, John and Lisa, and they work together. Lisa does something illegal, and John was a witness. John's testimony is really the only thing law enforcement has to go on at this point, but circumstances are such that both characters could suffer if John testified (maybe he was also doing something questionably legal that his testimony would bring to light). If the characters hear rumors that the police will ask John to testify, but he hasn't officially been asked yet, can he marry Lisa, invoke spousal privilege, and avoid being compelled to testify? Or would that not count since the event he would have been testifying about occurred before the marriage?

Side note: John and Lisa are in love so marriage in general wouldn't come as any huge surprise to anyone who knows them, but the suddenness might seem odd.

This is a really simplified version of the whole scenario, but I'm hoping it'll still be enough to help me figure out whether the idea I have in mind would even be reasonable. Granted, this story is set in a fictional universe so I have some room to maneuver, but many of their other laws have Earth/real-life origins so I'm trying to at least base the general ideas on real things.

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    I removed the "immunity" tag because "immunity" when the term is used narrowly and correctly refers to substantive freedom from liability (e.g. historically spousal immunity meant that it was not a crime to beat your wife), while "privilege" governs when evidence concerning conduct can be excluded from a court proceeding even though the underlying conduct can give rise to liability if proven with other evidence. – ohwilleke May 16 '17 at 2:34
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The short answer is that yes, a couple can marry for the purpose of gaining access to the marital privilege in court actions, even if they are pending when the marriage occurs. There is basically no such thing as a sham marriage in this context.

(There may be a handful of outlier cases as is the case in any legal rule, but this is the overwhelmingly uniform rule of law today.)

In practice, outside the context of an annulment proceeding in the civil courts where one of the parties to the marriage or fiduciaries such as legal guardians for one of the parties to the marriage seek to have it invalidated, a legally entered into marriage is valid for all purposes without question. Even many marriages that can be annulled for religious purposes are not eligible to be annulled under non-religious civil law. Third-parties generally do not have standing to declare that a marriage be annulled.

Usually marriage is conclusively established by the existence of a marriage license and the absence of a death or divorce by either party. Even the existence of a common law marriage, or the existence of some factor that prevents a marriage from being recognized as valid (e.g. one of the parties is already married or is underage) is often fairly easily proved (and is usually completely unrelated to the case in which a martial privilege is to be asserted and undisputed).

Immigration law is the only context is which the status of a marriage as a sham is actively policed.

Also, keep in mind that the marital privilege for evidentiary purposes is actually two separate privileges. One is the privilege not to testify against a current spouse in a legal proceeding. The other is the privilege not to testify as to confidential communications made to a spouse while the couple was married. Both have exceptions (e.g. for crimes in which one of the spouses is the victim).

A confidential communication to a boyfriend/girlfriend prior to marriage is not protected by the confidential communications marital privilege even after the couple married. Only the testimonial privilege would be available with regard to those communications, and the testimonial privilege often has more exceptions than the confidential communications privilege (usually the exceptions are enumerated by statute that varies from state to state).

A previous answer related to spousal privilege with quotations from a state statute to provide an example can be found here. In Colorado, which is fairly typical, the confidential communications privilege applies to all crimes (except those which are ongoing or are between the spouses), while the testimonial privilege does not apply to serious felonies.

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A marriage that is entered into for the "sole purpose" (or even primary purpose) of subverting the law is void as a sham. However, if that is one of the purposes among other legitimate reasons then that is fine.

  • Right, that makes sense. But if there was no way the authorities could prove it was a sham, would the timing matter? – EJF May 15 '17 at 23:36
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    I have a hard time understanding how any marriage could be found by a court to be 'void as a sham' and declared legally void. The only place I have heard of such is when a marriage occurs so that one party can gain legal status in the country. And even then, the marriage (controlled by state law) is not voided by the state. Only the federal government responds by not allowing or granting legal status to the spouse. The marriage itself is still recognized in all other ways. – mark b May 16 '17 at 17:01

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