Matter of Dagamac

Interim Decision #3:445

MATTER

DAGAXL0

In Visa Petition Proceedings

A-13768111

Deckled by Board March 29, 1965

Absent a recognition of the validity of petitioner's *Wean "mail order"

divorce by the State of Washington, the State of residence and domicile of

petitioner, a 'United States citizen, it will not be recognized as valid in the

Philippine Islands for the purposes of his subsequent marriage in that

country to

beneficiary, a native and

citizen of the Philippines; hence, laic

subsequent marriage is invalid for immigration purposes and does not serve

to confer nonquota status on beneficiary.

The case comes forward on appeal from the order of the District

Director, Manila, Philippines, dated January 25, 1965, denying the

visa petition on the ground that the petitioner's marriage to the bene-

ficiary

is not a valid one and she is not entitled to nonquota status as

his spouse.

The petitioner, a native of the Philippines, a citizen by naturaliza-

tion in the United States District Court of Washington, Washington

District, on December 17, 1956, 60 years old, male, seeks nonquota,

status on behalf of the beneficiary, a native and citizen of the Philip-

pines,

years old. The parties were married at Pasay City, Phil-

ippines on December 18, 1964. The petitioner was married

once

previously, the beneficiary was not previously married.

The record contains a memorandum for the file •y the District

Director dated January 7, 1965. The petitioner was questioned under

oath and stated that he had been previously married to Basirma

Labor in Bohol, Philippines and that two children were born of this

marriage; that he went to the United States in 1951 and since 1952

has b

n 0, resident of Seattle, Washington, where ha owns his home; •

and that he was naturalized as a citizen of the United States on

December 17, 1956, in -Seattle, Washington. He stated he con

suited an attorney in Brooklyn, New York regarding a divorce from

his

wife, Basilisa, and the attorney informed him that he, the at-

torney, would obtain a divorce in Mexico and that it would not be

109

Interim Decision *1445

necessary for the petitioner to go to Mexico. The petitioner further

testified that his first

wife

had never been in the

United States and

still resides in the Philippines; on November 25, 1964, through his

attorney, the petitioner obtained a divorce from his wife in

the Third

Civil Court, Bravos, Chihuahua, Mexico; and that his attorney told

him he was now free to marry again. The petitioner stated that

neither he nor his wife ever went to or resided in Mexico in connec-

tion with the Mexican divorce decree. The petitioner further stated

that he returned to the Philippines in December 1964, and on Decem-

ber 18, 1964, married the beneficiary at Pasay City, Philippines. The

visa petition indicates that the

petitioner's

address

in the United.

States is Seattle, Washington, that his present address is Caloocan

City, Philippines and that he and the beneficiary intend to reside in

Seattle, Washington.

The record, therefore, establishes that neither the

petitioner nor

his

first wife ever resided in Mexico and that the divorce obtained by the

petitioner is of the type commonly referred to as a "mail order"

divorce

decree.

The parties were thereafter married in the Philip-

pines. The generally accepted rule that the validity of the marriage

is governed by the law of the place of celebration is applicable in this

case." An examination-of the marriage contract of the petitioner and

the beneficiary which is contained in the file shows the nationality of

the husband to be American and that of his wife Filipino. The peti-

tioner, a native-born Philippine citizen, lost such citizenship by natu-

ralization in

foreign eountry." According to article 66

of the

Civil

Code of the Philippines, when either or both of the contracting

parties are citizens or subjects of

foreign country, it shall be neces- .

sary, before a marriage license can be obtained, to provide themselves

with a certificate of legal capacity

to contract marriage, to be issued

by their respective diplomatic or consular officials. Article 67 of the

Philippine Code provides that the marriage contract in which the

contracting parties shall state they take each other as husband and

wife, shall also contain: (1) the full names and domiciles of the con-

tracting parties; (2) the age of each; (8) a statement that the

proper

marriage license

has been issued according to law. Ail exam-

ination of the marriage certificate and other documents fails to show

a compliance with the requirements of article *66 although the mar-

riage license itself is not avexhibit. _-

Article 97 of the Civil Code of the Philippines provides that a

petition for legal separation may be filed: (1) for adultery on the

part of the wife and for concubinage, on the part of the husband as

'Matter

of P—,

4 I.

N. Dec. 610 (Acting Attorney General; 1852).

The Civil Code 01 the Philippines, article

49 (1950 ea.).



11Q

Interim Decision #1445

defined in the Penal Code; or (2) for an. attempt by one spouse

against the life of the other. This provision, enacted in 1949, in

effect, abolishes divorce in the Philippinec2

The abolition of absolute

divorce in the Philippines may result in (1) leniency toward, annul-

ment of marriage; and (2) change of nationality. in order to be freed

from the coercive power of Philippine law. If a divorced alien,

residing or sojourning in the Philippines desires to marry there, the

requirement imposed by the Philippine law before a license is issued

is for him to show that he has the capacity to marry under his

national law. If under his national law, the divorce obtained by him

is valid, no reason exists why he should be precluded from marrying

in the Philippines. This liberal attitude commends itself as socially

desirable from the international standpoint. The rule provides

basis for sound international cooperation in the matter of filing

decrees

The petitioner has resided in the State of Washington since 1952,

was naturalized in Seattle, Washington on December 17, 1956, and

continues to

be a United States national and a resident and domicili-

ary of the State of Washington. Section 26.08.200 of the Revised

Code of Washington relating to Out-of-State Divorces—Validity-

provides that a divorce obtained in another jurisdiction shall be of

no force or effect in this state if both parties to the marriage were

domiciled in this state at the time the proceeding for divorce was

commenced. Research. fails to disclose a case exactly in point in the

State of Washington.

"mail order"

decree of divorce of a

country

outside the United

States,

i.e.,

a decree .obtained by mail by a spouse

not domiciled in the foreign country in proceedings in which neither

the husband,

nor wife appeared before the foreign tribunal and the

defendant spouse was not served with process in the divorce forum,

is invalid .and will not be recognized.° A state or country cannot

exercise through its courts jurisdiction to dissolve a marriage when

neither spouse is domiciled .within the state .° A decree of divorce

granted by a court of any country which is not the

bona fide

and true

domicile is valueless, unless indeed its effectiveness is recognized by

the

kw eloraice7ii.

•

Summarizing, under the present Philippine Civil Code divorce in

the Philippines among Filipinos is abolished. A divorced alien (a

person of other than Philippine nationality) must show that he has

' Garcia &

Alba,

MVO Code of the Philippines

(1950), p. 253.

Salongsi,

Private International Law

(1952

revised ed.), pp. 272-275.

27B. 0..1.3.. a

352.

Restatement of

the Law of Conflict of Laws, s.

'Padilla,

Conflict of Laws

(1959), p. 169.

111

Interim Decision #1445

the capacity to marry under his national law.

It appears that a

Mexican "mail order" divorce decree is not valid in Washington, the

State of residence and domicile of the

petitioner,

who is a natural-

ized American citizen, and therefore an alien under Philippine law:

Accordingly, the appeal from the decision of the District Director

denying the visa petition will be dismiss

' ed.

In the event the petitioner can present a certificate of legal capac-

ity to contract marriage in the Philippines issued by a United States

consular officer, such certificate may be submitted together with a

motion to reopen the proceedings.

ORDER:

it is ordered that the appeal be and the same is hereby

aifunigsed.

• Supra,t This view is in seeord with the view of the Attorney General

Matter of

P—,

4 L & N. Dec. 610.

112