The Fourth Circuit recently held that Virginia law would recognize the validity of a divorce obtained lawfully in a foreign country by citizens of that country even though neither party was domiciled there at the time of the divorce.  Adjei v. Mayorkas, 59 F.4th 659 (4th Cir. 2023).

The applicant, Adjei, had been denied naturalization after USCIS determined he had not properly obtained lawful permanent resident, or LPR, status based on his claimed marriage to an LPR spouse. At issue was the legality of Adjei's claimed marriage, which had been celebrated in Virginia, and whether that state would recognize the legality of his LPR spouse’s divorce from her prior husband. Adjei's LPR spouse, a Ghanian native and citizen, was previously domiciled in Ghana during her marriage to a Ghanian spouse. Neither she nor her former spouse were present or domiciled in Ghana at the time their divorce was granted under Ghanian customary law.  

Generally, the validity of a foreign divorce will depend both on the divorce laws of the country that granted the divorce and the reciprocity laws in the specific U.S. state where an applicant has remarried. Because the Full Faith and Credit Clause is inapplicable to foreign judgments, a foreign divorce is valid only where a state would recognize it as a matter of “comity.” As such, the Fourth Circuit in Adjei looked to the requirements for recognition set forth in controlling Virginia case law, including: 1) whether Ghana had jurisdiction to enforce divorce; 2) whether Ghanaian law is ‘reasonably comparable’ to the law in Virginia; 3) whether the divorce was obtained through fraud; and 4) whether recognition of the divorce would be contrary to Virginia public policy.  

Because the first and third requirements were not at issue, the Court analyzed only the second and fourth requirements under Virginia law. As to the second requirement, the Court distinguished the facts of the present case from cases where parties lack any connection to out-of-state jurisdiction. The Court reasoned that like domicile, citizenship was relevant to determining whether Ghana had legitimate and independent basis to grant a divorce. In doing so, the Court found that citizenship provides an acceptable alternative to domicile because citizenship in a nation, like domicile in a state, provides an adequate connection between the person and place to justify an exercise of legal authority over relations such as divorce.

In analyzing the fourth requirement relating to public policy, the Court rejected the argument that domicile should be required as a condition of foreign divorce. The Court emphasized that it did not follow that Virginia would refuse to recognize a foreign divorce as a matter of comity, simply because Virginia would not grant a divorce under similar circumstances due to its domicile requirement. Further, the Court explained that while Virginia could expressly prohibit the recognition of out-of-state divorces where the parties are domiciled in the state where recognition is sought, Virginia law did not provide any such provision. Lastly, the Court highlighted several reasons why Virginia public policy favors the recognition of divorces, including promoting the interest of uniformity in marital status and upholding the validity of marriages, even subsequent marriages.

To avoid pitfalls for clients seeking marriage-based benefits, practitioners should screen for the validity of a marriage that has occurred subsequent to a foreign divorce. The implications of this case on the legality of marriages celebrated in the United States remain unclear given the variation in state laws concerning the recognition of out-of-state divorces and the application of principles of comity to foreign judgments.

In various jurisdictions, foreign divorces granted in jurisdictions where the divorcing parties were not domiciled or bona fide residents have been found invalid. Still, in those states where there is no law expressly forbidding the recognition of foreign divorce in the absence of domicile, the reasoning provided by the majority in the Adjei decision can be persuasive. Keep in mind, however, that the present case ultimately turned not only on public policy considerations, but more importantly, on citizenship. Here, the facts involved divorcing parties who were both citizens of the country that granted the divorce. They also involved divorcing parties who were once domiciled in that country during part of their marriage. As a result, if your foreign divorce case involves parties who are not citizens of the country where the divorce was granted, this case may not be as persuasive.