Recognition of Foreign Divorces

ADJEI V. MAYORKAS, _____F.4d _____ (4th Cir. 2023). 

Facts: Plaintiff and Defendant were before the Fourth Circuit on a citizenship and naturalization issue. Plaintiff and Boateng were a married couple, and Plaintiff sought to become a naturalized citizen of the US. Before Boateng was married to Plaintiff, she was married to Gyasi in Ghana. Boateng and Gyasi obtained a Ghanaian divorce through a ceremonial divorce, wherein neither party was domiciled or residing in Ghana. Ghanaian law allows the head of households to perform to ceremonial divorce. A Ghanaian court subsequently certified the divorce. Later, Plaintiff and Boateng married, and Plaintiff became a permanent resident. Plaintiff then applied for citizenship and was denied because immigration believed that Virginia would not recognize the Ghanaian divorce. 

Issue: Would Virginia recognize the Ghanaian divorce? 

Holding: Yes, apparently. 

Reasoning: The Fourth Circuit looked to Virginia law to determine if Virginia would accept the Ghanaian divorce as valid. In Virginia, comity of laws is not an obligation but rather a matter of courtesy based on justice and goodwill. Furthermore, the state Supreme Court has established a four part test: (1) the other sovereign had jurisdiction “to enforce its order within its own judicatory domain”; (2) the relevant law of the other sovereign is “reasonably comparable to that of Virginia”; (3) the decree was not obtained through fraud; and (4) enforcement of the other sovereign’s decree would not be “contrary to the public policy of Virginia.” There was no question about the first or third factors as the Ghanaian courts have accepted the divorce, and there was no fraud. On the third factor, the Fourth Circuit reasoned that while Virginia (like North Carolina) only grants divorces if one party is domiciled in the state, foreign nations are not like a sister state. Domicile is important for the granting of divorce because the state has an interest in the marital status of the parties. A foreign nation has that same interest in their citizens. Therefore, there is a degree of similarity between how courts treat citizenship with nations, and domicile with states. On the fourth factor, the Court reasoned that it is not explicitly against public policy in Virginia not to recognize divorces where both parties are non-domiciled. But rather, Virginia policy favors recognizing divorces whenever possible so that one’s marital status does not change with one’s location. The Court reversed the decision and remanded to the district court with instructions to grant the application for naturalization. 

Note: This is an interesting case that not only discusses foreign divorce decrees, especially ones in which no party resides in the foreign nation, but also because it seems to substitute their own judgment for the judgment of the courts of Virginia. Contact a family law specialist if a foreign divorce decree is part of your case. North Carolina considers comity with an eye towards domicile as well (see Atassi v. Atassi, 451 S.E.2d 371, 117 N.C.App. 506 (N.C. App. 1995), but recognition of foreign divorces is a complex subject.