Make Sure Foreign Marriage is Valid in Order to Seek a Divorce From That Marriage in Virginia.

Question: In the state of Virginia, is foreign marriage valid in order to seek a divorce? 

The answer is that it depends. In order for a divorce to be sought in the state of Virginia, a foreign marriage must be considered valid. 

There are requirements that must be followed. A foreign divorce will typically not be recognized by the United States or Virginia if neither divorcing spouse is domiciled in the foreign country at the time that the divorce is performed. This is because the principle of comity dictates that a foreign divorce valid in the country where it is performed is valid everywhere. Jahed v. Acri, 468 F.3d 230, 235 (4th Cir. 2006) (quoting Matter of Luna, 18 I. & N. Dec. 385, 386 (BIA 1983)). 

Example of Adjei v. Mayorkas (2021) 

The rationale for this is explained in the recent case of Adjei v. Mayorkas (2021). In June of 1996, Ms. Barbara Ama (then Janet) Boateng married Kinglsey Kwame Gyasi in Ghana. The couple immigrated to the United States and became lawful permanent residents in June of 1999. They separated in January of 2000 and were divorced according to Ghanaian law in April 2001. This divorce process involved Ms. Boateng's father and Mr. Gyasi's uncle submitting a statutory declaration of the divorce. The divorce was confirmed by the Circuit Court of Ghana and was attested before the High Court of Justice in Ghana in May of 2015, presumably as part of the instant immigration proceedings. 

Adjei v. Mayorkas, No. 1:20-CV-01098, 2021 WL 1135025, at *1 (E.D. Va. Mar. 23, 2021) 

However, while comity is not “mere courtesy and good will,” it is also not “a matter of absolute obligation...” Oehl v. Oehl, 221 Va. 618, 622 (1980), (quoting Hilton v. Guyot, 159 U.S. 113, 163–64 (1895)). A foreign divorce will typically not be recognized by the United States or Virginia if neither divorcing spouse is domiciled in the foreign country at the time that the divorce is performed. Jahed, 468 F.3d at 235. 

Where the divorce in question is followed by a subsequent marriage, the Court is instructed to look at the law of the state where the subsequent marriage was performed and ask whether that state would recognize the divorce. Matter of Ma, 15 I. & N. Dec. 70, 71 (BIA 1974). Mr. Adjei and Ms. Boateng were married in Virginia. Virginia courts have “refused to recognize another country's divorce decree in cases where neither party was domiciled in that foreign jurisdiction at the time of divorce.” Annan v. Lynch, 202 F. Supp. 3d 596, 603 (E.D. Va. 2016). 

The Eastern District of Virginia has recognized the holdings of “[o]ther courts..., applying the general principles of comity, comparable to those articulated in Virginia, [recognizing] the validity of a foreign divorce decree where neither party was domiciled in the issuing country at the time of divorce, but there were other close connections to the foreign forum.” Id. However, for reasons explained in this Order, the Court declines to apply those principles of comity to the instant action. 

Adjei v. Mayorkas, No. 1:20-CV-01098, 2021 WL 1135025, at *2 (E.D. Va. Mar. 23, 2021) 

Test for Comity of Matter of Ma 

In Adjei v. Mayorkas the petitioner asked the Court apply the test for comity laid out in Matter of Ma, which looks to the connections formed by the divorcing spouses with the foreign jurisdiction granting the divorce. See Matter of Ma, 15 I. & N. Dec. at 72. 

Under that rule, a foreign divorce may be recognized even when the divorcing spouses were not domiciled in the foreign jurisdiction which granted the divorce if they were married in that jurisdiction, lived in that jurisdiction during the marriage, had notice of the divorce despite their lack of domicile, and were citizens of that jurisdiction at the time of the divorce. Id. 

If a single Ms. Boateng were before the Court asking for recognition of her divorce, then this test may well apply. However, the Board of Immigration acknowledged in Matter of Ma that this test applies only when there is no subsequent marriage. Id. at 71. Where there is a subsequent marriage, such as Ms. Boateng's subsequent marriage to Mr. Adjei, the Court must look to the law of the state where that subsequent marriage was celebrated. Id. 

As explained above, the law of Virginia does not recognize Ms. Boateng's Ghanaian divorce, and so her marriage to Mr. Adjei is not valid under Virginia law. 

Conclusion 

The state of Virginia does not extend comity to foreign divorces in which the divorcing 

spouses were not domiciled in the jurisdiction granting the divorce and there is a subsequent marriage celebrated within Virginia. Thus, Virginia does not recognize Ms. Boateng's Ghanaian divorce from Mr. Gyasi, nor does it recognize her subsequent marriage to Mr. Adjei. USCIS properly denied Mr. Adjei's application for naturalization on this basis. 

Adjei v. Mayorkas, No. 1:20-CV-01098, 2021 WL 1135025, at *2 (E.D. Va. Mar. 23, 2021) 

Special Thanks to Law Clerk William Taylor Gleason for his assistance with this article.