Recognizing Foreign Marriage and Divorce

Over the past few decades, relocation from one country to another has become very common. With that, questions arise regarding the recognition of marriage and divorce in other countries.  There are no clear-cut answers for these questions, but some general rules apply.

The overarching principle the governs recognition of foreign marriage is that a marriage that is valid where celebrated is valid in Virginia unless it is against the Commonwealth's strong public policy.  This means that a marriage that is officiated in another country will be typically recognized in Virginia if it was performed and registered in accordance with the foreign country's laws. Examples of marriages that violate Virginia's public policy include incest, bigamy and underage marriage.  Regardless of the other country's laws and whether or not it recognizes such marriages, because they violate the Commonwealth's public policy, they will not be recognized.

Divorce is a bit more complicated.  If the foreign divorce is from another state within the United States, then it is accorded full faith and credit pursuant to the U.S. Constitution and will be recognized.  However, divorces obtained in foreign countries are not subject to the same constitutional protection and are instead recognized under the discretionary principle of comity.  Comity, according to the United States Supreme Court is "neither a matter of absolute obligation, on one hand, nor of mere courtesy and goodwill, upon the other.  But it is a recognition which one nation allows within its territory to legislative, executive, or judicial acts of another nation..." See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

Since divorces obtained in foreign countries are subject to comity, their recognition is not mandatory.  Divorce in Virginia requires residence and domicile for at least one of the parties as a basis for jurisdiction.  Virginia courts generally recognize divorces obtained from countries that have similar requirements for jurisdiction.  Therefore, divorces obtained in many of the Western European countries are typically accorded comity.  However, "quickie" 24-hour divorces obtained in the Caribbean nations, for example, are not recognized because they do not have a residency requirement and do not require a domiciliary intent.  Although some countries, like the Dominican Republic, Mexico or Haiti may consider these divorces valid, Virginia courts will not accord them comity and they will be deemed invalid.

It is also important to note that oral divorce, for example the Islamic talaaq or other oral divorces based on tribal traditions, such as those performed in some African and Middle Eastern countries, which do not require court proceedings or documentation, are not recognized.

If you have a question about the validity of your foreign marriage or divorce or need to enforce the provisions of a foreign divorce or challenge its validity, contact our firm to schedule a consultation and get advice.

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