Interim Decision #3:445
MATTER Or DAGAXL0
In Visa Petition Proceedings
A-13768111
Deckled by Board March 29, 1965
Absent a recognition of the validity of petitioner's *Wean "mail order"
divorce by the State of Washington, the State of residence and domicile of
petitioner, a 'United States citizen, it will not be recognized as valid in the
Philippine Islands for the purposes of his subsequent marriage in that
country to beneficiary, a native and citizen of the Philippines; hence, laic
subsequent marriage is invalid for immigration purposes and does not serve
to confer nonquota status on beneficiary.
The case comes forward on appeal from the order of the District
Director, Manila, Philippines, dated January 25, 1965, denying the
visa petition on the ground that the petitioner's marriage to the beneficiary is not a valid one and she is not entitled to nonquota status as
his spouse.
The petitioner, a native of the Philippines, a citizen by naturalization in the United States District Court of Washington, Washington
District, on December 17, 1956, 60 years old, male, seeks nonquota,
status on behalf of the beneficiary, a native and citizen of the Philippines, 30 years old. The parties were married at Pasay City, Philippines on December 18, 1964. The petitioner was married once
previously, the beneficiary was not previously married.
The record contains a memorandum for the file •y the District
Director dated January 7, 1965. The petitioner was questioned under
oath and stated that he had been previously married to Basirma
Labor in Bohol, Philippines and that two children were born of this
marriage; that he went to the United States in 1951 and since 1952
has b een 0, resident of Seattle, Washington, where ha owns his home; •
and that he was naturalized as a citizen of the United States on
December 17, 1956, in -Seattle, Washington. He stated he con :.
suited an attorney in Brooklyn, New York regarding a divorce from
his wife, Basilisa, and the attorney informed him that he, the attorney, would obtain a divorce in Mexico and that it would not be
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Interim Decision *1445
necessary for the petitioner to go to Mexico. The petitioner further
testified that his first wife had never been in the -United States and
still resides in the Philippines; on November 25, 1964, through his
attorney, the petitioner obtained a divorce from his wife in the Third
Civil Court, Bravos, Chihuahua, Mexico; and that his attorney told
him he was now free to marry again. The petitioner stated that
neither he nor his wife ever went to or resided in Mexico in connection with the Mexican divorce decree. The petitioner further stated
that he returned to the Philippines in December 1964, and on December 18, 1964, married the beneficiary at Pasay City, Philippines. The
visa petition indicates that the petitioner's address in the United.
States is Seattle, Washington, that his present address is Caloocan
City, Philippines and that he and the beneficiary intend to reside in
Seattle, Washington.
The record, therefore, establishes that neither the petitioner nor his
first wife ever resided in Mexico and that the divorce obtained by the
petitioner is of the type commonly referred to as a "mail order"
divorce decree. The parties were thereafter married in the Philippines. The generally accepted rule that the validity of the marriage
is governed by the law of the place of celebration is applicable in this
case." An examination-of the marriage contract of the petitioner and
the beneficiary which is contained in the file shows the nationality of
the husband to be American and that of his wife Filipino. The petitioner, a native-born Philippine citizen, lost such citizenship by naturalization in a. foreign eountry." According to article 66 of the Civil
Code of the Philippines, when either or both of the contracting
parties are citizens or subjects of a foreign country, it shall be neces- .
sary, before a marriage license can be obtained, to provide themselves
with a certificate of legal capacity to contract marriage, to be issued
by their respective diplomatic or consular officials. Article 67 of the
Philippine Code provides that the marriage contract in which the
contracting parties shall state they take each other as husband and
wife, shall also contain: (1) the full names and domiciles of the contracting parties; (2) the age of each; (8) a statement that the
proper marriage license has been issued according to law. Ail examination of the marriage certificate and other documents fails to show
a compliance with the requirements of article *66 although the marriage license itself is not avexhibit. _-
Article 97 of the Civil Code of the Philippines provides that a
petition for legal separation may be filed: (1) for adultery on the
part of the wife and for concubinage, on the part of the husband as
'Matter of P—, 4 I. & N. Dec. 610 (Acting Attorney General; 1852).
' The Civil Code 01 the Philippines, article 49 (1950 ea.). .
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Interim Decision #1445
defined in the Penal Code; or (2) for an. attempt by one spouse
against the life of the other. This provision, enacted in 1949, in
effect, abolishes divorce in the Philippinec2 3 The abolition of absolute
divorce in the Philippines may result in (1) leniency toward, annulment of marriage; and (2) change of nationality. in order to be freed
from the coercive power of Philippine law. If a divorced alien,
residing or sojourning in the Philippines desires to marry there, the
requirement imposed by the Philippine law before a license is issued
is for him to show that he has the capacity to marry under his
national law. If under his national law, the divorce obtained by him
is valid, no reason exists why he should be precluded from marrying
in the Philippines. This liberal attitude commends itself as socially
desirable from the international standpoint. The rule provides a
basis for sound international cooperation in the matter of filing
decrees
The petitioner has resided in the State of Washington since 1952,
was naturalized in Seattle, Washington on December 17, 1956, and
continues to be a United States national and a resident and domicili-
- ary of the State of Washington. Section 26.08.200 of the Revised
Code of Washington relating to Out-of-State Divorces—Validityprovides that a divorce obtained in another jurisdiction shall be of
no force or effect in this state if both parties to the marriage were
domiciled in this state at the time the proceeding for divorce was
commenced. Research. fails to disclose a case exactly in point in the
State of Washington. A "mail order" decree of divorce of a country
outside the United States, i.e., a decree .obtained by mail by a spouse
not domiciled in the foreign country in proceedings in which neither
the husband, nor wife appeared before the foreign tribunal and the
defendant spouse was not served with process in the divorce forum,
is invalid .and will not be recognized.° A state or country cannot
exercise through its courts jurisdiction to dissolve a marriage when
neither spouse is domiciled .within the state .° A decree of divorce
granted by a court of any country which is not the bona fide and true
domicile is valueless, unless indeed its effectiveness is recognized by
the kw eloraice7ii. 7 •
Summarizing, under the present Philippine Civil Code divorce in
the Philippines among Filipinos is abolished. A divorced alien (a
person of other than Philippine nationality) must show that he has
' Garcia & Alba, MVO Code of the Philippines (1950), p. 253.
4 Salongsi, Private International Law (1952 revised ed.), pp. 272-275.
5 27B. 0..1.3.. a 352.
' Restatement of the Law of Conflict of Laws, s.
'Padilla, Conflict of Laws (1959), p. 169.
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Interim Decision #1445
the capacity to marry under his national law. 8 It appears that a
Mexican "mail order" divorce decree is not valid in Washington, the
State of residence and domicile of the petitioner, who is a naturalized American citizen, and therefore an alien under Philippine law:
Accordingly, the appeal from the decision of the District Director
' ed.
denying the visa petition will be dismiss
In the event the petitioner can present a certificate of legal capacity to contract marriage in the Philippines issued by a United States
consular officer, such certificate may be submitted together with a
motion to reopen the proceedings.
ORDER: it is ordered that the appeal be and the same is hereby
aifunigsed.
• Supra,t This view is in seeord with the view of the Attorney General
in Matter of P—, 4 L & N. Dec. 610.
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