Interim Decision #2702
MATTER OF WEAVER
In Visa Petition Proceedings
A-21043291
Decided by Board May 16, 1979
(1) The validity of a divorce entered into while neither party to it is domiciled in the place
where it was granted, but where both parties appeared for the divorce, should first be
judged by the law of the jurisdiction where the parties to the divorce were domiciled at
the time of the divorce. Since the place where the parties to the divorce were domiciled
at the time of the divorce was the only place then having an interest in the proceedings,
the parties should be able to rely on the law of that jurisdiction, even if they move to
another jurisdiction.
(2) Matter of Biebl, Interim Decision 2672 (BIA 1978), holding that a Dominican Republic
divorce entered into by New York domiciliaries (including the petitioner) was invalid
for immigration purposes because the divorce would not have been recognized in
Connecticut, where the petitioner and the beneficiary had married, and were liv ing, is
overruled. The validity of the divorce should first have been judged by New York law.
(3) The Connecticut Supreme Court's holding that at least one of the parties to a foreign
divorce must have a bona fide domicile in the country granting the divorce in order for
the divorce to be recognized (Gitraitis v. Litraitis, 162 Conn. 540 (1972)) will not be
disturbed by the present decision, since in Litvaitis, the parties to the divorce were
domiciled in Connecticut at the time of the divorce, so Connecticut had an interest in the
divorce at the time it was rendered.
(4) In a ease involving an immediate relative visa petition, the record Will be ten-landed to
the District Director to enable the petitioner to show that the Bahamas, where the
beneficiary and her first husband were domiciled at the time of their divorce, -would
recognize the Dominican Republic divorce. There should then be a determination of
whether Connecticut would consider the divorce valid if the Bahamas would.
ON BEHALF OF PETITIONER: Ryszard S. Mrotek, Esquire
360 Main Street
Hartford, Connecticut 06106
Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
This is an appeal from a decision of the District Director, d ated
October 17, 1978, denying a visa petition filed on behalf of the ;beneficiary as the petitioner's wife under section 201(b) of the Immigration
atnd Nationality Act, 8 MS 1151(b)_ The record will be remanded.
The petitioner is a 28-year-old native and citizen of the United States .
He married the beneficiary, a 30-year-old native and citizen of Jamaica,
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on July 29, 1977, and filed the instant visa petition on her behalf on May
24, 1978. The marriage was the first for the petitioner and the second
for the beneficiary. The beneficiary's first marriage was dissolved by a
Dominican Republic divorce decree dated February 3, 1977. The record
contains a copy of this decree, which relates that both parties to
the marriage appeared, in the Dominican Republic in order to effect the
divorce, but that neither party resided in or was domiciled in the
Dominican Republic. Rather, both the beneficiary and her first husband
lived in the Bahamas at the time of their divorce.
The District Director in denying the petition found that the beneficiary's divorce from her first husband was ineffective under Connecticut law, and that, consequently, her marriage to the petitioner was
invalid. He relied for these findings on Litvaitis v. Litvaitis, 162 Conn.
540 (1972) and Spaulding v. Spaulding,
171 Conn. 220 (1976). In Litvaitis, the Connecticut Supreme Court held that at least one of the
parties to a foreign divorce must establish a domicile in the jurisdiction
in which the divorce is sought in order to give the court jurisdiction to
grant the divorce. This principle was said to apply even if domicile was
not required by the laws of the foreign jurisdiction granting the divorce.
Spaulding set forth the rule that, for purposes of establishing jurisdiction of a court to grant a divorce, "domicile" is that place where a person
has voluntarily fixed his habitation, not for mere temporary or special
purpose, but rather with a present intention of malting it his home,
unless or until something which is uncertain or unexpected happens to
induce him to adopt some other permanent home.
On appeal, the petitioner argues that the validity of the Dominican
divorce must be determined under the law of the Bahamas, rather than
under Connecticut law. He contends that, because the parties to the
divorce had no connection with Connecticut at the time the divorce was
granted, Connecticut's interest in that proceeding "is too slight to
justify resort to Connecticut law to judge the validity of the divorce."
We agree, and in so holding we overrule our prior decision in Matter of
Biebl, Interim Decision 2672 (BIA 1978). In Biebl, we held that Lit-
vaitis, supra, and Spanlding, supra, applied to invalidate a Dominican
Republic divorce obtained by the petitioner and his first wife who were
domiciled in New York at the time of their divorce. The petitioner's
second marriage in Connecticut was therefore held to be invalid, and
could not support a visa petition. The only difference between the facts
in Biebl and those in the present case is that the parties to divorce in
Biebl were New York domiciliaries when their marriage was dissolved,
rather than domiciliaries of the Bahamas. Hence, a reversal of Biebl is
the necessary consequence of our decision in this case.
The Connecticut cases relied upon in Bleb!, supra, did not dictate
the result reached in that case. In
Litvaitis, supra, the parties to the
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Mexican divorce were both domiciled in Connecticut at the time of the
divorce, so Connecticut had a clear interest in the divorce at the time it
was rendered. Spaulding, supra, merely set forth a definition of
"domicile" for divorce purposes. In Biebl, supra, as well as in the instant
case, the situation involved a marriage in one place, a bilateral (where
neither party has established domicile, but both parties appear or are
represented at the divorce proceedings), foreign (Dominican Republic)
divorce, then remarriage by one of the parties to the divorce in another
jurisdiction. This factual situation means that our decision here will in
no way interfere with or be contrary to the holdings of the Connecticut
Supreme Court.
Several commentators have addressed the choice of law issue I involved in Biebl, supra, and in the present case, and all have indicated
that a divorce valid in the jurisdiction in which the parties to it lived at
the time of the divorce should be given full effect in a second state. See
Comment, "New York Approved Mexican Divorces: Are They Valid in
Other States?" 114 U. PA. L. REV. 771 (1966); Foster, "Recognition of
Migratory Divorces: Rosenstiel v. Section 250," 43 N.Y. U. L. REV. 429
C1968); Currie, "Full Faith and Credit, Chiefly to Judgments: A Role for
Congress," 1964 SUP. CT. REV. 89. The rationale of these articles is
bottomed on considerations of fundamental fairness and reasonable expectations: Since the place where the parties to the divorce were
domiciled at the time of the divorce was the only place with an interest
in the proceedings at that time, the parties should be able to rely on the
law of that state, even if they move to another jurisdiction. As was
written in the University of Pennsylvania article, at 777 and 778,
People anticipating divorce are most familiar with the law of their domiciles; it is that
law, if any, upon which they act in reliance. If, after having secured a divorce in a
manner sanctioned in their home state, they establish residence elsewhere, it is unjust
to defeat the reasonable expectations upon which they originally acted. State X, then,
having had no relationship with the party or the divorce proceeding at the time it toot
place, should refrain from applying its law .
The interest of the sister state did not exist at the time of the divorce—the transaction
on which the rights of the parties depend. The rights of the divorced parties became
settled and would be drastically unsettled by the application of another state's law. Such
application would be an unfair interference with reasonable expectations.
This article also notes that although there have been few cases dealing
With recognition of foreign divorces in a jurisdiction in which neither
Party resided at the time of the divorce, "those few cases are unanimous
iia holding that the law of the jurisdiction in which the parties were
I The issue is one of choice of law, rather than of full faith and credit, since in the usual
tease there is no judicial decree specifically declaring a divorce to be valid. Where there is
3 uch a judgment from a state, it must of course he given full faith and credit in a sister
state. U.S. CONST. art. IV, § I_
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domiciled at the time of the divorce should be applied in determining the
validity of the divorce." Id. at 777. 2
We believe that the rationale expressed in the commentaries is sound,
and should be followed. If parties obtain a divorce in a manner which is
considered valid in the place in which they reside at the time of divorce,
it is reasonable for those persons to rely on the validity of their divorce,
wherever they may be. To hold otherwise would create constant problems in our increasingly mobile society. Hence, if Bahamian law recognizes the beneficiary's Dominican Republic divorce from her first
husband, then we believe that divorce should be considered valid for
immigration purposes. Accordingly, the record will be remanded to the
District Director in order to give the petitioner, an opportunity to prove
the law of the Bahamas on this issue. 3 See Matter of Anna.ng , 14 L & N.
Dec. 502 (BIA 1973). After considering any evidence presented, the
District Director should render a new decision in accordance with Matter of To, 14 I. & N. Dec. 679 (BIA 1974).
ORDER: The record is remanded to the District Director for further
proceedings consistent with this opinion.
2 We note that very few states recognize foreign divorces such as those involved in
Biebl, supra, and in the present case. Thus, in the typical situation, the problem herein
addressed will not arise.
We recognize, however, that uithnatoly wp will have to decide whether or not Connecticut would recognize the divorce in question, if the Bahamas would.
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