Interim Decision #2295
MATTER OF FERREIRA.
In Visa Petition Proceedings
A-19411014
Decided by Board June 12, 1974
Since under the law of Portugal, judicial separation of natural persons and of
property does not dissolve the marriage bonds (Article 1774, Civil Code of
1966), the Portuguese court decree of separation of persons and property
presented by petitioner in support of his visa petition does not constitute proof
of the termination of his first marriage in Portugal in 1961. (Neither is the
decree recognized in the State of New York, the place of celebration of the
subsequent marriage, as sufficient to terminate petitioner's first marriage.)
Hence, petitioner's marriage to the beneficiary in New York in 1970 is void
and cannot serve to confer preference classification on the beneficiary under
section 203(aX2) of the Immigration and Nationality Act, as amended, as
petitioner's spouse.
ON R FIT A tr tIF PETTTIONER: Allan Ross. Esquire
60 Broad Hollow Road
Melville, New York 11746
The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of
the Immigration and Nationality Act. The petition was approved
by the District Director on October 15, 1970. However, on May 3,
1971, the District Director notified the petitioner of his intent to
revoke the approval of the visa petition on the ground that a prior
marriage of the petitioner had never been legally terminated.
Subsequent correspondence by counsel failed to overcome the
ground for revocation. In a decision dated August 5, 1971, the
District Director revoked the visa petition. The petitioner has
appealed from that decision. The appeal will be dismissed.
The petitioner and the beneficiary, both natives of Portugal,
were married in Hauppauge, New York on April 28, 1970. A
petition for a spouse must be accompanied by proof of the legal
termination of all previous marriages of both husband and wife. 8
CFR 204.2(cX2). The petitioner presented a decree of separation of
persons and property rendered by a court in Portugal on January
17, 1970. The District Director found that this decree did not
terminate the petitioner's prior marriage.
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We have consulted the Hispanic Law Division of the Library of
Congress regarding Portuguese law. Article 1789 of the Civil Code
of Portugal (promulgated in 1966) states that a marriage may be
dissolved by the death of one of the spouses or by divorce. Article
1790 provides that neither Catholic marriages performed after
August 1, 1940, nor civil marriages in which the parties have
contracted Catholic marriages after that date, may be dissolved by
divorce. Article 1774 states that judicial separation of natural
persons and of property does not dissolve the marriage bonds.
The petitioner entered into a Catholic marriage in Portugal in
1961. The Portuguese decree of separation of persons and property
did not terminate the petitioner's first marriage. Counsel has
conceded that this is the Portuguese law. Nevertheless, he argues
that New York, the place where the present marriage was celebrated, would recognize the Portuguese decree as sufficient to
terminate the prior marriage.
We are not dealing with a- statutory prohibition against the
remarriage of divorced persons, to which New York might decline
to give extraterritorial effect if it violated New York policy. We are
faced here with a decree that did not dissolve the marriage bonds_
A New York court has stated that:
If a divorce decree, whether designated interlocutory or otherwise, does not
of itself immediately terminate the marriage affected thereby, any attempted
subsequent marriage by a party thereto, prior to said decree becoming or
being made final, is void and bigamous; and the courts have unanimously so
declared, irrespective of the place of celebration thereof.... Marzano v.
Marzano, 154 N.Y.S2d 507, 509 (Sup. Ct. 1956).
In Kurras v. Kurras,
(1938), the
court held that an Austrian separation from bed and board was
not an absolute divorce in Austria, and that therefore the defendant's subsequent New York marriage was void ab initio.
We conclude that the Portuguese decree of separation was not
sufficient to terminate the petitioner's prior marriage under either
Portuguese or New York law. Nor is there any merit to counsel's
contention that the issuance of a. marriage license by the Town
Clerk of Smithtown, New York establishes the legal termination of
the petitioner's prior marriage.
Since the petitioner still has a wife in Portugal, we have no
choice but to hold that his present marriage to the beneficiary is
void. Therefore, he cannot confer preference status on the beneficiary as his spouse under section 203(a)(2) of the Act.
The decision of the District Director was correct. Consequently,
the appeal will be dismissed. It appears from the record that
counsel is exploring the possibility of instituting a divorce proceeding in the petitioner's behalf in the States of New York. If the
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petitioner is able to obtain a valid divorce from his first wife and
remarry the beneficiary, he may submit a new petition in her
behalf.
ORDER: The appeal is dismissed.
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