MATTER OF 5—
In VISA PETITION Proceedings
A-11760497
Decided by Board Hay :?5, 1961
Marriage — Not valid where contracted in New Hampshire before Massachusetts divorce decree became final.
Beneficiary's marriage to petitioner in New Hampshire on December 28, 1060,
which occurred nine days after beneficiary had obtained decree nisi in Massachusetts divorce proceedings against first wife, is ruled void. Under the
law of Massachusetts, a decree nisi does not become final until sim months
have elapsed from the date of its entry.
BEFORE THE BOARD
DISCUSSION: The case comes forward on appeal from the' order
of the District Director, Boston District, dated February 16, 1961,
denying the visa petition for the reason that no valid marriage exists
between the petitioner and the beneficiary, her alleged husband.
The petitioner, a native of Italy, naturalized citizen of the United
States, 53 years old, female, seeks nonquota status on behalf o the
beneficiary, a native and citizen of Italy, 54 years old, male, her
alleged husband. The parties underwent a marriage ceremony on
December 28, 1960, at. Salem, New Hampshire.
Both petitioner and the beneficiary were previously married one
time. The petitioner's first marriage was terminated by the death
of her husband in 1943.
As evidence of the termination of the beneficiary's marriage,
there has been submitted a copy of a decree nisi entered in the Probate Court at Boston, Suffolk County, Massachusetts, in favor of
the beneficiary on December 19. 1960. The decree recites that it
shall become absolute upon and after the expiration of six months
from the date of entry of the decree. Inasmuch as the present
marriage in New Hampshire was performed on December 28, 1960,
only nine days after the date of the decree nisi. the issue presented is whether the petitioner has established a valid marriage
upon which to predicate her petition for nonquota status on behalf
of the beneficiary.
Under the law of Massachusetts, decrees of divorce in the first
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instance are decrees nisi and become absolute after the expiration of
six months from entry thereof, unless the court. within said period,
for sufficient cause, upon application of any party interested, otherwise orders. 1 The entry of the decree nisi, does not terminate the
marriage; there must be a lapse of six months before there is a
legal termination of the marriage. 2
Here the parties had married in the State of New Hampshire
within the six-month period. The case of Smith. v. Smith, 99 N.H.
376,
11 A.2d 531 (S. Ct., N.H., 1955), is almost factually identical
with the instant case. There. the defendant's husband had been
granted a decree nisi on April 14. 1947, which did not. become absolute until after six months from that. date. However, the wife
nonetheless entered into a marriage with the plaintiff on June 1,
1947, in New Hampshire. The parties lived together as man and
wife in Massachusetts until 1952. The court found that the parties
both knew that the Massachusetts divorce decree was not final when
they got married in New Hampshire but they entered into the ceremony in good faith and in the belief that the marriage was lawful
in New Hampshire. The court applied the law of the state of domicile, Massachusetts, and found that since the defendant was a married woman at the time of the ceremony in New Hampshire, the
marriage was absolutely void under Massachusetts law. 8 However,
the court. interpreted Massachusetts General Laws, Chapter 207, section 6,4 to find that the trial court was warranted in concluding
that the parties had entered into the New Hampshire ceremony in
3 Massachusetts General Laws, Chapter 208, section 21.
=Rollins v. Gould,
244 Mass. 270,
138 N.E. 815; Diggs v. Diggs,
291 Mass.
399,
196 N.E. 858; Sheffer v. Sheffer,
316 Mass. 575,
56 N.E.2d 13; Vernier,
American Family Laws (1932), p. 156.
3 Chapter 207, section 10, General Laws, provides: "If any person residing
and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage maler the laws of this commonwealth and
goes into another jurisdiction and there contracts a marriage prohibited and
declared void by the laws of this commonwealth, such marriage shall be null
and void for all purposes in this commonwealth with the same effect as though
such prohibited marriage had been entered into in this commonwealth."
4 Chapter 207, section 6, provides: "If a person, during the lifetime of a
husband and wife with whom the marriage Is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live
together thereafter as husband and wife, and ouch rubraquent marriage eon
tract was entered into by one of the parties in good faith, in full belief that
the former husband or wife was dead, that the former marriage had been
annulled by a divorce, or without knowledge of such former marriage, they
shall, after the impediment to their marriage has been removed by the death
or divorce of the other party to the former marriage, if they continue to live
together as husband and wife in good faith on the part of one of them, be
held to have been legally married from and after the removal of such impediment e …."
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good faith in the belief that the marriage was lawful in New
Hampshire.
The record shows that the petitioner was questioned under oath
on January 31, 1961, by a Service officer and although she admitted
the immigration people and others had told her there could be a
question as to whether a marriage in another state might - be regarded
as invalid if the marriage occurred within the six-month period
before the Massachusetts divorce became final, nevertheless her
lawyer advised her to go ahead and get married and since she loved
the beneficiary she proceeded to marry him in New Hampshire.
Under the holding in Smith, v. Smith, supra, this 'might create an
issue of fact as to good faith under section 6, Chapter 207, Massachusotta General Laws,' as to the subsequent marriage. However,
in the instant case, the Massachusetts decree nisi will not becoma
final until June 19, 1961. Therefore, the impediment of a prior
lawful marriage still exists and the parties herein cannot now be
regarded as lawfully married. At the end of the six-month period
the parties may adjust their status by a marriage, which would be
the simplest course, or by reliance, on Massachusetts General Laws,
Chapter 207, section 6. At the present time there is no other course
but to 'dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby
di sm issed.
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