VP 5-7303.
Decided by Board December 23, 1954.
Divorce — Granted by foreign consul in United States to local resident.
A divorce granted to a resident of the State of New York by the Royal Consulate General of Egypt in New York City is not valid in the State of New York and, consequently, not entitled to full faith and credit in other states even though such divorce is recognized as valid in Egypt.
BEFORE THE BOARD
Discussion: This case comes before us on appeal from a denial of a petition for the issuance of an immigrant visa submitted by A---- W---- H---- on behalf of her husband, A---- O---- H----. The district director's denial of the petition is predicated on the fact that the beneficiary, who entered the United States at the port of New York on August 30, 1948, as an accredited government official and is still residing here, was previously married and the only evidence of termination of that marriage is a certificate that a divorce was granted by the Royal Consulate General of Egypt in New York City, at a time when the beneficiary was residing in the State of New York.
The certificate in question reads as follows: "This is to certify that Mr. A---- O---- H---- was married on December 5th, 1946 at Cairo, EGYPT, to Miss E---- I---- A----, and was divorced from said wife on December 4th, 1950. This divorce was concluded at the office of the Royal Consulate General of Egypt in New York, U.S.A., in conformity with stipulations of the Egyptian Law and entered in the Divorce Records under No: 20." The certificate is dated November 5, 1952, and bears the signature of the Egyptian consul.
The petition reflects that following the above divorce the beneficiary married the petitioner on December 16, 1951, at Baltimore, Maryland. Citizenship of the petitioner is conceded. The issue before us is the validity of the marriage in the State of Maryland on December 16, 1951.
We have been unable to find any authority that a divorce decree terminating a marriage entered into abroad by a resident of the State of New York, handed down by a foreign consulate in that state, in the absence of a defendant who has never resided in that state, will be recognized as valid either in that state or in the State of Maryland, so as to permit a subsequent marriage in the State of Maryland. Under the circumstances, we are constrained to fall back upon general principles of law.
It is the general rule that any court in the United States will recognize a valid divorce decree and give it the same effect that it has in the jurisdiction in which it was rendered (17 Am. Jur. 167-168, 561). Where it is void under the laws of the state or county where it was rendered, it is void everywhere (17 Am. Jur. 556, 557).
It is a concomitant rule that each state has jurisdiction over the matrimonial status of its citizens and persons domiciled in its jurisdiction; hence, each state acting through its legislature has the exclusive right and power to regulate, control, and prescribe and change conditions for divorce of those residing within its territorial limits. Divorce rests wholly on statutory provisions (17 Am. Jur. 150; 27 C.J.S. 527).
Thus, in the United States a divorce may be secured only in a court having a proper statutory jurisdiction of such proceedings, upon a ground prescribed by statute, and upon compliance with statutory modes and forms of procedure (27 C.J.S. 527-528). For example, a Jewish rabbinical divorce obtained in the State of New York has been held invalid ( Shelman v. Shelman, 174 N.Y.S. 385, 105 Misc. 461) even though such a divorce, if obtained abroad in a country recognizing its validity would be recognized here upon grounds of comity ( In re Rubenstein's Estate, 257 N.Y.S. 637, 143 Misc. 917). Similarly, a church divorce of the Mormon church was not regarded as valid when it was not secured through judicial proceedings and failed to conform with the statutory requirements for divorce in the State of Utah ( Hilton v. Roylance, 69 P. 660, 25 Utah 129).
There is no question that the instant "divorce" failed to meet the statutory requirements of the State of New York, since the Civil Practice Act of that state provides that the State Supreme Court has exclusive jurisdiction of matrimonial actions, adultery is the only ground for absolute divorce, and the jurisdictional requirements of the statute as to residence of the defendant, service, etc., must be met (C.P.A. 1147; C.P.A. 1167; Rules of Civil Practice 47, 53).
We are of the opinion that the above-stated general, and well-accepted, principles govern in the instant case. The divorce was obtained in the State of New York. It was not obtained in a court of competent jurisdiction in that state and under general principles of law would not be recognized as valid in the State of New York. Since it was invalid in the state where obtained it would not be entitled to full faith and credit in the State of Maryland where the subsequent marriage occurred. It follows that the marriage in issue was invalid.
The doctrine of comity would appear to have no application, since, notwithstanding the fact that the divorce occurred in a foreign consulate in the United States, it was not a foreign divorce, and insofar as its recognition by the State of Maryland with respect to the subsequent marriage, is subject only to the requirement of full faith and credit, if valid under the laws of the State of New York, since it was obtained in that state by a person residing therein.
Hansen v. Hansen, 8 N.Y.S. 2d 655, 255 App. Div. 1016, cited by counsel in his brief and in oral argument, does not govern on the premises. In that case both the plaintiff and her husband were Danish subjects. The divorce proceedings appear to have been initiated by the plaintiff appearing at the Danish consulate in New York City. Her husband was residing in Canada. He joined in the application for divorce, and, pursuant to Danish law a decree of separation was granted by the Minister of Justice. The marriage was dissolved by a Royal Decree of divorce granted by the King of Denmark. The difference between the facts, in the Hansen case and those in the instant case is more than one of mere procedure, as alleged by counsel. In the Hansen case the courts were confronted with a decree which was actually a foreign decree entered abroad by foreign authorities of competent jurisdiction, and the court asserted that in the absence of a showing of lack of jurisdiction, it would be assumed that the decree was valid and would be recognized in Denmark. It is clear that on these facts the doctrine of comity required that the foreign decree be recognized. In the instant case, we are confronted with no such foreign decree. The certificate before us states that the divorce was concluded at the Office of the Royal Consulate General of Egypt in New York, New York. As stated above, we have found no authority in statutes or decisions which would indicate that the State of New York, by an extension of the doctrine of comity, would recognize such a decree entered in usurpation of its traditional authority in matrimonial matters over persons residing within its borders.
Counsel, in his brief and in oral argument, asserts the authority of the Egyptian consul to grant such a decree under Egyptian law. We do not question that he has such power, and that such a decree granted by him would be recognized as valid in Egypt. This is a different matter from saying that such a decree would be binding on either the New York or Maryland courts. As we have indicated above, this would be contrary to the weight of authority. It is concluded that the petition was properly denied. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.