I Married a Skrull!

Today’s post is about Johnny Storm (aka the Human Torch) and his marriage to Alicia Masters (actually the Skrull Lyja posing as Masters).  Ken wrote in to ask “Was Johnny Storm’s marriage to Lyja valid?”

This isn’t the only time that this scenario has occurred in comics.  Ken also asked about the marriage between Namor the Sub-Mariner and Dorma (actually Llyra in disguise).  In that case a quirk of Atlantean law came to the rescue: because Namor thought he was marrying Dorma, his marriage was to her and not Llyra, even though Dorma was not present at the ceremony.  I’m not sure what that says about the nature of consent in Atlantean law, but we’ll stick with the Johnny Storm/Lyja case, since New York law is a bit easier to research.

I. Void and Voidable Marriages

Perhaps unsurprisingly, the answer is that their marriage would be voidable.  N.Y. Domestic Relations Law § 7 states

A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: … 4. Consent[ed] to such marriage by reason of force, duress or fraud

There’s a distinction between a marriage (or other contract) that is voidable and one that is void.  A void marriage (defined in §§ 5-6) is one that never exists at all, typically in cases if incest or bigamy.  A voidable marriage is a marriage until a court declares it void, and so can theoretically remain a legitimate marriage if the parties want it to be.  So in this case if Johnny Storm and Lyja agreed that they really did love each other after all (certainly Lyja claims to), then they could stay married, though there would be a lot of paperwork to correct.

Alas, love does not conquer all here, and Johnny wants none of it.  So could he prove a case of fraud?

II. Fraud

New York law treats the kind of fraud sufficient to void a marriage as similar to that which would void a contract.  ”Marriage is a civil contract, and the courts will annul such a marriage like other contracts, where the consent of a party to it has been procured by fraud or the misrepresentation of a material fact.”  Lembo v. Lembo, 193 Misc. 1055, 1057 (Sup. Ct. 1949).  Further:

Where the ground relied upon for dissolution is fraud, the fraud contemplated by the statute must be of a nature and import so serious that it destroys the essence of the marriage contract and of a magnitude that the person asserting the fraud as a ground for dissolution would not have entered the marriage contract, if, in advance thereof, the misrepresentations had been revealed.

Di Pillo v. Di Pillo, 17 Misc.2d 673, 675 (Sup. Ct. 1959).  It seems pretty clear that lying about one’s identity as an alien at war with the human race and impersonating another person already known to the other party are sufficient.  Johnny would not have married Lyja had she been honest about her identity.  Indeed, he likely would have attacked her on sight.

III. An Alternate Approach

Another approach would be to argue that the marriage was void from the beginning (as opposed to voidable) because human/Skrull marriage is not legally recognized in New York.  Our prior post about this was a bit controversial, but our conclusion there was that interspecies marriages (e.g. Clark Kent and Lois Lane) may not be legal under current law.  Since the Storm/Lyja marriage occurred in 1987, long before even same sex marriage was legalized anywhere in the United States, we feel even more comfortable asserting that a human/Skrull marriage would not be legal (again, assuming that the marriage laws on Earth 616 were the same in 1987 as they were in the real world).

IV. Conclusion

Whether because a human/Skrull marriage is legally impossible or simply because Storm was tricked into marrying Lyja, Johnny would have no trouble getting out of the marriage.  There might still be legal consequences, however.  A question for any tax attorneys or accountants in the audience: if Johnny had filed his tax return as married/filing jointly and claimed the standard deduction, would he have to repay any tax if the marriage was later declared void?  If so, could he seek compensation from Lyja?

35 Responses to I Married a Skrull!

  1. What is the applicability of the marriage between Scott and Madelyne Summers?

    Would interspecies marriage be more likely to be upheld if the competent jurisdiction representing the other species considers the marriage valid? (Xavier and Lilandra)

    Will Johnny need to worry about bestiality charges hanging over his head?

  2. Seth Finkelstein

    I doubt the views of non-US jurisdictions matter for valid marriage – it’s hard enough for US states.

    My question here would be if Johnny can sue Lyja for anything. Were there some old torts about marriage under false pretenses which would apply? He’s got to have one heck of a case for emotional damages.

    • Oh there would be all kinds of stuff. For starters, he could sue her for fraud. There are lots of possible damages stemming from the fraud, such as the value of any gifts given as a result of the fraud (e.g. an engagement ring).

      Similarly, he could probably sue for battery, since “A valid claim for battery exists where a person intentionally touches another without that person’s consent.” Wende C. v. United Methodist Church, 4 N.Y.3d 293, 297 (2005) (citing the Restatement (Second) of Torts). Storm’s consent was not effective. Under the Restatement rule, “If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests … and the mistake is known to the other or is induced by the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm.” § 892B. It’s clear from the comics that Storm and Lyja consummated their relationship, and he could sue for battery for any such “offensive contact.”

      Note, however, that Lyja may not be criminally liable for rape, as it is not clear that New York recognizes “rape by fraud.”

      • New York doesn’t, but what if they had “offensive contact” in a state other than New York ?

      • Few US states have adopted rape by fraud, but Lyja could be criminally liable for rape in, for example, Tennessee. Tenn. Stat. § 39-13-503 states “Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances: … (4) The sexual penetration is accomplished by fraud.”

      • So the marriage being based in NY doesn’t change anything?

        Thanks

      • I don’t think so. If the intercourse occurred in Tennessee, then that would probably be enough to give Tennessee jurisdiction over the crime. It wouldn’t matter that they were married, since the marital rape exception has been (mostly) abolished in the US (which is undeniably a good thing in my opinion). Since consent needs to be continuous, arguably Lyja would also have committed the fraud in Tennessee simply by maintaining her disguise as Alicia Masters. The comics indicate that it takes some amount of concentration for a Skrull to maintain a shapechange, so I think that would be sufficient to count as an act of fraud by which Storm’s consent was obtained. In that case both the sexual act and the fraud would have occurred in Tennessee, which would definitely be enough for jurisdiction, and the state where they got married wouldn’t matter.

  3. As for the Atlantean law, it’s probably some kind of proxy marriage law. Apparently they are legal in California, Colorado, Texas, and Montana (which allows doubly proxy marriages), but it does seem pretty lax to allow a proxy marriage without prior notice.

  4. Of course, if they had been married by Catholic rites, it would be an open-and-shut case for nullity on the ground of error.

  5. I strongly doubt that John would have a standing to sue. A Skrull is not a human being, and as such, it is not a person. It is a feral animal. Therefore, it does not have any possessions or legal capability of forming contracts any more than a chimpanzee or an earthworm.

    Naturally, as a wild animal, a Skrull is protected in many ways. It is likely to have the protections of the cruelty to animals statute, and it can only be legally hunted by the landowner. If a Skrull has any possessions, I think that they could be legally treated as lost, abandoned or mislaid property and seized by anyone who happens to find them.

    Thus, suing a Skrull for a tort is as mindless as suing the moose that collided with your car.

    • Really? That’s an interesting interpretation of an intergalactic empire that’s intelligent enough to assume the identity of humans, interact in human society, replace several high ranking humans and plan a complex invasion of Earth with a backstory of having done this on multiple other planets.

      In fact here’s Marvel on the Skrulls:

      Technology Level
      ‘ Skrulls have mastered space travel on vast scales, space and planet colonization, advanced energy based weaponry, advanced medical technology, warp drive starships, advanced robots, cyborg, and cybernetic technology, and advanced

      More on Marvel.com: http://marvel.com/universe/Skrulls#ixzz28YQOhYGm

      So yeah, I’m going to question the ‘wild animal’ idea.

      • James Pollock

        Instead of consulting Marvel, consult a Kree (they have MUCH more experience interacting with Skrulls than anyone at Marvel…)

        I think you’ll find that they back the “wild animal idea”.

      • So I shouldn’t put the official statement of the people writing the comics (as well as the fact that they were more than intelligent enough to stage all this) as a reliable indicator of their intelligence.

      • James Pollock

        Nope. In-universe, Marvel (many of whom have appeared directly within the comics) just makes comics that tell the stories (sometimes incorrectly) of what happened to the world’s super-powered beings; thus, they only know as much about the Skrulls as the FF do. Whereas, as noted above, the Kree have been dealing with Skrulls for THOUSANDS OF YEARS.

      • Being intelligent does not necessarily mean a species has legal personhood. There are apes and cetaceans that are more intelligent than some humans (either because of infancy or developmental disabilities), but mere intelligence is not enough to make them persons. Now, perhaps the USA of Earth 616 has a “Skrull are people too” law or a more general “intelligent species (whatever that means) are people too” law, but I’m not aware of one. I welcome any information on the subject, however. It would be an interesting topic to write about.

    • You make a good point. If, as we have contended elsewhere, the non-human species in the Marvel and DC Universes are not legal persons (absent some legal intervention by the courts or Congress that we haven’t seen evidence of), then it would probably be impossible for Storm to sue Lyja. So we can’t have it both ways. Either Lyja is a legal person with the right to marry (and thus Storm can get out of the marriage on the basis of fraud and sue Lyja for damages) or Lyja is not a legal person and the marriage was no more legal than someone trying to marry their pet rock.

      • Melanie Koleini

        James,
        There is a third option: Skrulls are legally people but legally not allowed to marry humans. Until the 20th Century, human beings of different races were not allowed to marry in many states.

        In that case, the marry would be void and Lyja could be sued for damages.

      • Seth Finkelstein

        Hmm … “Until the 20th Century, human beings of different races were not allowed to marry in many states.” – somewhere in here I think there’s the makings of an allegory story. Maybe some Skrull crew-members decide to ditch being part of an invasion force, “go native”, and want to be legit Earth citizens and specifically to marry. War-brides essentially.

      • James Pollock

        How did these “going Native” Skrulls get past the blood test requirement? As I recall, that’s how they busted the Thing (The John W. Campbell kind, not the orange-y, rocky guy.)

      • That’s a good point, Melanie. It underscores the fact that I wish I knew what the precise legal status of the various intelligent non-humans on Earth-616 was. And in the DC Universe, for that matter. In the New 52 there are indications that Luthor, at least, believes that Superman, as an alien, has no rights, which he uses to justify experimenting on / torturing him in one of the early issues.

      • Chakat Firepaw

        @James Pollock:
        Perhaps they got past the blood test by getting married in one of the 48 states that don’t require one? The only holdouts are Mississippi, (for syphilis), and Montana, (for rubella, and only women are tested).

      • James Pollock

        Well, sure, blood tests aren’t required by many states now, but how many back then? (Sure, we know the “marriage” took place in NY, but the Skrull doppelganger wouldn’t have known for sure that the marriage wouldn’t be performed elsewhere, as the FF travel extensively. Heck, Richards might have wanted to to testing regardless of whether or not the law requires one, as blood-type mismatches can cause problems with childbearing.)

  6. I wouldn’t think that any anti-miscegenation laws are legally valid, even if they’re still on the books somewhere. I would think that a law which prevented a human from marrying a space alien would count as “anti-miscegenation law that’s still on the books”.

    You could still argue that she’s a member of a separate species but in the MC2 universe she remains married to Johnny and they have a child. That’s pretty much the definition of “same species”. In general, comics treat all humanoid biological sentients as compatible in ways that scientifically would lead one to conclude that they’re the same species. (The same applies double for Kryptonians–in previous continuities there have been plenty of human/Kryptonian hybrids and there only aren’t now because the continuity is too new for us to have see any.)

    Anyway, what’s the answer for Scott and Madelyne? In this case, at the time of the marriage, neither Scott nor Madelyne knew that she was a clone, so there’s no question of intentional deceit. However, you could argue that the marriage happened under mind control (since Mister Sinister is revealed to have given her false memories). Also, as a clone, she’s chronologically quite young and certainly under the legal age for marriage (for that matter, would Scott be a child molester by this reasoning?)

    • Melanie Koleini

      The biological (and legal) definition of ‘species’ isn’t nearly as simple as being able to produce fertile offspring. In my college biology class, I learned about 4 different definitions. (Wikipedia provides 13 definitions.)
      Being able to produce fertile offspring is evidence 2 beings may be the same species but just because hybridization can occur, it is not proof they are same species. Domestic dogs and wolves can produce fertile offspring and they are considered separate species by (most) biologists and legally.

      More on point, most definitions of species either explicitly state or implicitly assume all members of a species share a common ancestor. No matter how similar Skrulls are to humans currently, there is no ‘missing link’ ancestor that marks the divergence of Skrull and human evolution.

      • More on point, most definitions of species either explicitly state or implicitly assume all members of a species share a common ancestor.

        By this reasoning a human from an alternate universe is a different species, as long as the two universes developed in parallel rather than diverged at some point.

        We also have no idea that some alien race didn’t spread life through the universe years ago (which is how Star Trek explains why there are interfertile humanoids around), making them related. This actually was canon pre-Crisis, although only at the single celled organism level, and would apply to Kryptonians (though I don’t know about Skrulls).

        Anyway, I don’t think “implicit” applies here. Otherwise you could argue that most definitions of human implicitly assume that someone who walks and talks and looks humanoid is a human. I would certainly argue this for Kryptonians.

      • Melanie Koleini

        Ken,

        You have a good point. Implicit assumptions may not be appropriate.  However, very few fictional aliens actually meet all the requirements of ANY definition of being Homo sapien. Being able to produce offspring is not enough. 

        To meet the reproductive definition of a species: 
        1. Hybrid babies must be created naturally (no intervention of medical science). 
        2. There must be many instances of this happing (one or 2 babies are not enough; one set of parents is not enough).  
        3. All sexes must be produced. (Boys and girls for bisexual species)
        4. Most progeny must be fully fertile. (The hybrid children must be able to reproduce naturally (and produce fertile offspring) with members of both parent races and other hybrids.) 

        People from alternate dimensions probably (but not necessary)  meet this definition for being Homo sapien.   But I don’t think  non-Earth based intelligent life forms have produced enough offspring with  Earth humans to meet the reproductive definition of being a Homo sapien. Even if enough progeny have been produced, I don’t think the comics ever confirmed the kids could reproduce without medical help.  

      • 1) We don’t know that the species didn’t have a “missing link” common ancestor, considering that alien races spreading life across the universe are possible and exist in some continuities. (It’s canon for Star Trek, for instance, and sort-of canon for pre-Crisis Kryptonians.)
        2) If you require a common ancestor, people from parallel universes don’t count because they meet all the other requirements (such as many offspring) but fail to have a common ancestor, assuming it’s a “parallel all along” universe rather than one which diverged at a moment in history.
        3) Many of your requirements for interfertility are things that would never be shown (except under rare circumstances) even if the beings are completely interfertile. It’s unlikely that a comic book that assumes interfertility is going to say “… and there was no medical intervention!”–it’s not the kind of thing that would be mentioned in the story if it is a nonissue. Nobody’s going to mention whether the progeny are fully fertile because that would require that the children grow up, and comic books work on a sliding time scale where most of the superheroes–and the alien races as well–only came on the scene in the past 15 years or so. And we’re not going to see large numbers of instances happening because comic books are generally about individual characters–it’s unlikely there will ever be more than one or two of a particular pairing.
        The only reasonable thing to do here is to assume that if the human and alien have children, and the story doesn’t treat it like a big deal that they are able to have children, then it’s not a big deal that they are able to have children and the two races are completely interfertile.
        Sure, science doesn’t agree with that, but science doesn’t agree with lots of things that are part of the genre. If you were going to go by science, not only could they not have children, but they wouldn’t have physically compatible sex organs, they wouldn’t have human-like facial expressions, they wouldn’t be able to eat each other’s food, and even the ones who look human (such as Kryptonians) could not possibly look human enough to pass for human in the street.

      • Melanie Koleini

        Ken,

        I went through the reproductive definition of a species to show defining 2 creators as being the same species takes more than the birth of one hybrid. There are many ways to define a species, some require a common ancestor, others do not. Some require genetic similarity others are based only on physical characteristics.

        I don’t think US courts use the reproductive definition in deciding matters of law. I’m not a lawyer, but I do know that coyotes, dogs, and wolves are considered 3 separate spices legally despite being interfertile. I think (but am not at all sure) that US law uses the Evolutionarily Significant Unit definition of a species. If any lawyers are reading this, I’d appreciate an expert opinion.
        Kryptonians, skrulls and every type of Star Trek alien form their own evolutionarily significant unit.

      • It’s complicated. For example, the Endangered Species Act allows the listing of a species or a discrete population segment thereof. The government (specifically the National Marine Fisheries Service) has used the evolutionary significant unit definition, which it equated with discrete population segments. Then there was a court case (Alsea) and the definition was changed, at least for NMFS purposes. A population is a discrete population segment depending on:

        (1) Discreteness of the population segment in relation to the remainder of the species to which it belongs;
        (2) The significance of the population segment to the species to which it belongs; and
        (3) The population segment’s conservation status in relation to the Act’s standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened?).

        In turn, discreteness depends on whether:

        (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
        (2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

        Then there’s a final step for significance, but I won’t go into it.

        Since that’s in the endangered species context, it’s not clear just how relevant it is to questions of marriage or legal personhood, but it does show that the government can and does look at levels lower than species.

    • I brought up Scott and Madelyne Summers because there’s an argument that neither one of them is actually human.

  7. What if, rather than Johnny, it was the skrull that wanted a divorce (/ annulment). Would the result read like Justice Taney’s most famous decision, that a skrull has no rights that a U.S. court must respect?

  8. Pingback: Marriage is between a man and a space alien

  9. Tax attorney here responding to the question in the original post (this isn’t legal advice or representation etc. etc.)

    It looks like the issue of filing status and void marriage has come up at least a few times. One United States Tax Court case on the issue is Estate of Buckley v. Commissioner, 36 T.C. 664 (1962). In that case, a taxpayer was married once, got a “divorce” in Mexico and subsequently “remarried.” The divorce decree was declared void and fraudulent by a New York court and subsequently the Mexican court. The second “marriage” was void under New York law because of the pre-existing marriage. The parties were therefore not legally married in the tax years at issue and not entitled to file joint returns.

    Does this mean that Mr. Storm has to file new returns for all the years going back to 1987? Probably not. Whether the change in filing status from married filing jointly (or married filing separately, if that’s what they did) to single will increase or decrease his tax liability will depend on their individual situation. He could easily be owed a refund if they filed joint returns and she had significant income. But there are statutes of limitations that are in play. Generally speaking, the IRS must propose any adjustment to a taxpayer’s tax liability within 3 years of the filing of the return. If Storm’s liability increases, he’s probably only on the hook for the last 2 or so years. The statute goes back 6 years if the understatement of tax is particularly large or forever if there is tax fraud involved, but these don’t appear to apply to Storm.

    If Storm overpaid and is owed a refund, there is a similar 3-year statute of limitations from the filing of a return to file a claim for refund for a given taxable year. If he rushes straight to his accountant (I’m guessing that scene got cut from the comic), he might be able to scoop up a few years worth of refunds.

    What about Lyje? Well, that’s probably beyond the scope of a comment International taxation is complex enough–interstellar taxation is getting crazy. Actually, if we conclude that she’s not a person capable of owning property it seems possible her income during the years at issue would be attributed to Storm, making it a lot less likely he’s getting those refunds.

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