Jeremy D. Morley
The rule that a foreign country divorce decree will not be recognized unless at least one spouse was domiciled (or possibly resident) in the foreign country applies in most states even if the parties both appeared in the foreign proceeding. See Jeremy D. Morley, International Family Law Practice, Sec. 5.11 (2020 edition).
New York has long followed its own path on this issue. The New York courts have consistently ruled that foreign divorces are valid and should generally be recognized if at least one party appeared in person in the foreign court or was otherwise significantly connected to the foreign country and the other party had notice of and the opportunity to participate in the foreign proceeding, so long as the petitioning spouse satisfies the jurisdictional ”requirements of the foreign nation granting the divorce. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709, 13 A.L.R.3d 1401 (1965).
But now, the Fourth Circuit Court of Appeals has held that a divorce obtained in a foreign nation by its own citizens is not invalid in Virginia simply because these citizens were not domiciled in their home country at the time of the divorce. It has ruled that their citizenship in that country provides an adequate relationship between person and place to justify the foreign nation's exercise of control over their marital status. Adjei v. Mayorkas, --- F.4th ----,2023 WL 1787879 (4th Cir. 2023).
The Court recited the long-standing principle that Virginia will grant comity to an act of another sovereign only if (1) the other sovereign had jurisdiction to enforce its order within its own judicatory domain, (2) the relevant law of the other sovereign is reasonably comparable to that of Virginia, (3) the decree was not obtained through fraud, and (4) enforcement of the other sovereign's decree would not be contrary to the public policy of Virginia.
In the pending case, the USCIS had denied an application for U.S. naturalization on the ground that the petitioner’s purported marriage to a U.S. citizen was invalid since his intended wife’s prior Ghanaian divorce would not be recognized in Virginia because, although the parties to that divorce decree were citizens of Ghana, they were each domiciled in the United States, not Ghana, at the time of the Ghanaian divorce decree. The lower court held that the petitioner's wife's divorce was not entitled to comity as neither spouse was domiciled in Ghana at the time of the divorce.
The Fourth Circuit disagreed. It held that,
“Citizenship in a nation, like domicile in a state, “implies a nexus between person and place of such permanence as to control the creation of legal relations.” Williams v. State of N.C. (Williams II), 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); see also Evans, 72 S.E.2d at 324. Thus, the citizenship of both parties in a nation provides that nation with a jurisdictional basis for granting the parties a divorce that seems “reasonably comparable” to the relationship between a state and its domiciliaries. For these reasons, we believe that, if faced with the question, the Supreme Court of Virginia would consider Boateng and Gyasi's citizenship in Ghana, the nation in which the divorce was granted, to be an acceptable alternative to domicile.”
In analyzing the issue of Virginia’s public policy, the Circuit court stated that it did not follow that Virginia would refuse to recognize, as a matter of comity, a divorce issued by a foreign nation simply because Virginia itself would not grant a divorce under similar circumstances. This was especially true where, as in the case at bar, the basis for the foreign nation's jurisdiction to grant the divorce was the divorcing parties' citizenship in that nation, a basis that “has no independent analogue in the domestic context.”
Although Virginia could, as some states such as Nevada do, expressly forbid the recognition of all out-of-state divorces where both spouses are domiciled in the state where recognition is sought, Virginia law does not so provide. Furthermore, the Supreme Court of Virginia had repeatedly recognized that the public policy of Virginia favors recognizing divorces whenever possible, so that one's marital status does not change with one's location. And where, as here, the divorce is followed by a subsequent marriage, the Commonwealth's interest in uniformity in marital status is reinforced by an even more foundational aspect of its public policy: “uphold[ing] the validity of the marriage status as for the best interest of society.”
The Court stated that the importance of recognizing out-of-state divorces has only increased with advances in transportation, citing New York’s Rosenstiel case, and the fact that the world has become even smaller and more mobile since then. It concluded that, “Given these precedents, we believe when, absent any fraud, a couple has married relying on a consensual divorce granted by a foreign nation to its citizens and in accordance with its laws, Virginia public policy would favor recognition of the divorce upon which the second marriage's legitimacy depends.”
To what extent the Fourth Circuit’s reasoned decision will apply in other states and in other circumstances remains to be seen.