PR 05115.001 Alabama
A. PR 82-046 Sam A. G~ ~ Validity of Mexican Divorce
DATE: September 7, 1982
Alabama courts refuse to recognize divorces procured in foreign countries where neither party was a good faith domiciliary.
(Validity of Mexican Divorce, RA IV (Walters) to Dir. IPB, 9/7/82)
Presumption of Validity of Second Marriage — Alabama
Under Alabama law, a divorce is presumed by a second marriage; however, this presumption may be rebutted by a reasonable inference to the contrary. We have found no authority under Alabama law for estopping an individual from attacking the validity of a divorce where said individual neither sought the divorce, or, at least consented to it, nor did said individual accept the 'fruits' of the divorce. Further, laches is not applicable to bar the first wife from attacking the validity of the Mexican divorce. Mere lapse of time does not constitute laches; it must appear that the delay has caused injury.
(Validity of Mexican Divorce, RA IV (Walters) to Dir. IPB, 9/7/82)
You have requested our opinion as to whether Kittye A. G~ meets either the legal definition of divorced spouse or wife of the number holder, Sam A. G~ .
The facts, as contained in the file, are that the number holder and Kittye were ceremonially married on March 8, 1941, in Lauderdale County, Mississippi. Kittye G~ submitted statements certifying that she and Sam G~ separated in December of 1965, that he asked her for a divorce, and that she refused. In March 1966, Mrs. Kitrye G~ petitioned the Chancery Court for the County of Lauderdale, Mississippi, for separate maintenance. On March 17, 1966, the Chancery Court issued a Final Decree granting Kittye separate maintenance and awarding custody of two minor boys to Sam G~. Kittye's statements indicate that she heard from her children that the number holder had divorced her in Mexico; however, she maintains that she was never given notice of divorce proceedings, that she did not appear in court, and that a lawyer advised her that the divorce was "not worth the paper it was written on." The file indicates that the number holder secured a divorce from Kittye in Nuevo Leon, Mexico, on July 25, 1966; he was the plaintiff in the divorce action. Prior to the divorce, Sam G~'s residence was in Mississippi. He established residence in Mexico for three weeks for the express purposes of securing the divorce. On July 26, 1966, the number holder was married in Nuevo Leon, Mexico, to Patricia Anne S~; they are now residing in Alabama.
Apparently, Sam G~ applied for retirement benefits on January 28, 1981. On his application, he indicated that he had divorced Kitrye and had been married to Patricia since 1966. Raymond Keith W~, the natural son of Patricia S. G~, applied for surviving child's benefits on January 28, 1981, based on the earnings of his stepfather, Sam G~. On March 20, 1981, Kittye A. G~ filed application for wife's benefits on the earnings record of Sam G~; she indicated that their marriage had not ended.
For Social Security purposes, an applicant is considered the wife of the insured if the courts of the state in which the insured individual is domiciled at the time the applicant files an application would find that such applicant and such insured individual were validly married at the time the applicant files such application. 42 U.S.C. §416(h)(1)(A). Inasmuch as the insured, Sam G~, was domiciled in Alabama at the time of Kittye's application, the laws of Alabama are controlling in the determination of whether Kittye is the legal wife of the insured.
The domestic validity of divorce judgments from foreign countries is not governed by the full faith and credit clause of the Constitution, but by the rule of comity, which permits recognition of judgments of courts of foreign countries pursuant to international duty and convenience, with due regard for the rights of American citizens. Thus, a decree of divorce granted in a foreign country by a court having jurisdiction to do so will generally be given full faith and effect in this country. But the tests of jurisdiction applied are ordinarily those of the United States rather than the divorcing country. Regardless of its validity in the nation awarding it, the courts of this country will not generally recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of the marriage unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good-faith domiciliary in the foreign nation at the time the decree was rendered. 13 A.L.R. 3rd, 1419 52,3. See, OGC opinions, OD 0565, Lyman C. M~ ~ .... (Fla.), RA IV (Williams) 7/17/81, and Alma T~~ S.C.), RA IV (Williams) 2/26/81.
In divorce actions, as in any other action, due service of process in accordance with local practice requirements is necessary to give the court jurisdiction to grant a divorce. Ingram v. Ingram, 143 Ala. 129, 42 So. 24 (1905). A divorce granted without service of process upon the defendant is void where he does not appear in the action or otherwise waive service of process. Id.; 24 Am. Jur. 2d, Divorce and Separation § 282. If the defendant is non-resident, the statutes commonly provide for constructive service by publication of notice and mailing a copy of the notice and the complaint or petition. Under Alabama law, it has been held that compliance with the rules on constructive service should appear on the face of the decree or the decree will be treated as void; the mere fact that the nonresident defendant in a divorce action had actual knowledge of the proceedings is not sufficient to give the court jurisdiction. Partlow v. Partlow, 246 Ala. 259,20 So.2d 517 (1945). In this claim it has not been established that Kittye received constructive notice of the Mexican divorce. Sam Graham stated that Kittye was "presumably notified by mail" of the Mexican divorce. Kittye, however, has stated that she learned of the divorce proceedings from her children. Thus, the divorce decree appears flawed by the lack of constructive notice to the defendant in the proceedings.
Even if Kittye received notice, ex parte divorces, based on the petitioning spouse's physical presence in the divorcing nation and notice to or constructive service upon an absent defendant spouse, are ordinarily held within the rule denying recognition to foreign divorce decrees procured without a showing of domicile by at least one spouse.
In the case of Wells v. Wells, 230 Ala. 430, 161 So. 794 (1934), the Alabama Supreme Court held invalid a Mexican divorce obtained by the husband while on a vacation trip where the wife received constructive notice but did not appear in the action. In affirming a declaratory judgment for the wife, the court found that the husband went to Mexico solely for the purpose of obtaining the divorce and that he had no intention of residing there, and held that no valid divorce could be granted on constructive service by a state or nation in which neither party is domiciled. The Wells court quoted an earlier Alabama case stating, "'If a party moves to another state merely for the purpose of obtaining a divorce, and intended to remain no longer than was necessary to accomplish his purpose, such a divorce would be invalid in this state.' Thompson v. Thompson, 91 Ala. 591, 8 So. 419 (1890); Thompson v. State, 28 Ala. 12." The court in Wells further noted that the Mexican court did not recite in its decree that the husband was a resident of that republic, and volunteered in dicta that even if it had done so it could be contradicted to show that the decree there rendered was null and void. See also, Haas-Phillips Produce Co. v. Lee & Edwards, 205 Ala. 137, 87 So. 200 (1920); Crimm v. Crimm, 211 Ala. 13, 99 So. 381 (1924). The court noted that the husband and wife had been married twenty-five years, that there was no hint of misconduct by the wife, that the husband voluntarily abandoned her and married again after the divorce, and found that the subsequent marriage was illegal in Alabama.
Thus, applying Alabama case law to the instant claim, it is clear that the 1966 Mexican divorce obtained by Sam G~ is invalid. It has not been established that Kittye was actually or constructively notified of the divorce action. Sam G~ stated that his reason for establishing residence in Mexico was "as per requirement for divorce;" he went there only for the purpose of obtaining a divorce without any intention of residing there as a good-faith domiciliary. Further, the Mexican court did not recite in its decree that Sam G~ was a resident of Mexico; in fact, the decree recites that both Sam and Kittye G~ were North Americans and that they were living in Demopolis, Alabama.
With regard to Sam G~'s subsequent marriage to Patricia S~, it is noted that under Alabama law, a divorce is presumed by a second marriage. Jackson v. Jackson, 275 So.2d 683, (Ala. 1973). As stated in Hammond v. Stripp, 289 So.2d 802 (Ala. 1974), "The presumption that a prior marriage has been dissolved should be accepted with caution and must yield so as not to require courts and juries to presume as true that which is probably false. The presumption of an innocent second marriage is overcome when circumstances require a reasonable inference to the contrary. Freed v. Sallade, 245 Ala. 505 (1944); Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166 (1944); Jordan v. Copeland, 272 Ala 336, 131 So.2d 696 (1961)." See, OGC opinion re. Presumption of Validity of First or Last Marriage (Ala.), RA IV (Kaplan) 5/24/76.. In this claim, the presumption of an innocent second marriage is clearly rebutted. Sam G~ and Patricia S~ were married in Mexico one day after the issuance of the (invalid) Mexican divorce decree; it would appear that both parties were well aware of the prior marriage. Similarly, the presumption that the earlier marriage was dissolved by divorce is rebutted by the above-discussed facts and law which indicate that the Mexican divorce was invalid.
Obviously, the Mississippi decree of separate maintenance is not a divorce decree. As quoted with approval in Howard v. Pike, 275 So.2d 645 (Ala. 1973), "A woman can have but one lawful husband living, and so long as he is alive and the marriage bond remains in full force, all her subsequent marriages, whether meretricious or founded in mistake and at the time supposed to be lawful, are utterly null and void. Sloss-Sheffield Steel & Iron Co. v. Watford, supra.; Bell v. Tennessee Coal, Iroin & R.R. Co., 240 Ala. 422, 199 So. 813 (1941);' Dorsey v. Dorsey, 259 Ala. 220, 66 So.2d 135 (1953)." Inasmuch as we have previously concluded that the Mexican divorce of Sam G~ and Kittye was invalid, it therefore follows that Sam G~ had a living wife at the time of his subsequent marriage to Patricia, and thus that the marriage of Sam and Patricia, while possibly founded in mistake and supposedly lawful, was null and void.
In this claim, the question has also been raised as to whether either the equitable doctrine of estoppel or laches may be applicable here to bar Kittye G~ from denying the validity of the Mexican divorce. Notwithstanding the general in-validity of a divorce decree rendered in a foreign nation where neither spouse was domiciled, a number of courts have indicated that practical recognition may be accorded such decree by estoppel, laches, unclean hands, or similar equitable doctrines under which the party attacking the decree may be effectively barred from securing a judgment of invalidity. See, Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237.
We have found no authority under Alabama law for estopping an individual from attacking the validity of a divorce where said individual neither sought the divorce or, at least, consented to it, nor did said individual accept the 'fruits' of the divorce. In the case of Reiss v. Reiss, 46 Ala. App. 422, 243 So.2d 507 (1970), it was held that the wife who had obtained the divorce decree, who acquiesced in the decree and separation agreement, and who accepted the fruits thereof ($130,000) for some ten years, was estopped to have the divorce decree annulled on the ground that the parties were not residents of Alabama at the time the decree was granted. Similarly, the court in Shapiro v. Shapiro, 280 Ala. 115, 190 So.2d 548 (1966), held that the wife was estopped by her conduct from asserting the invalidity of a divorce decree by accepting more than $66,000 and other benefits from her husband over a period of almost three years and acquiescing in the divorce which was procured by the wife's fraudulent representations as to the husband's residence at the time of the divorce. The court in Levine v. Levine, 262 Ala. 491, 80 So.2d 235 (1955), found that where the wife received $20,000 in lump sum settlement and admitted allegations concerning residence in the husband's petition for divorce, she was estopped from asserting that the divorce decree was void on the ground that the court had no jurisdiction. See also, Fairclough v. St. Amand, 217 Ala. 19, 114 So. 471 (1927). Inasmuch as Kitrye neither consented to the divorce nor did she enjoy the fruits thereof, we conclude she is not now estopped from denying the validity of the divorce decree.
With regard to laches, the court in Multer v. Multer, 195 So.2d 105 (Ala. 1966), cited to 27 Am. Jur. 2d, Equity § 152, for an adequate definition, "The doctrine of laches may be defined generally as a rule of equity by which equitable relief is denied to one who has been guilty of unconscionable delay, as shown by surrounding facts and circumstances, in seeking that relief. 'Laches' has been defined as such neglect or omission to assert a right, taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in equity." The court noted that, "Laches is not fixed by a hard and fast limit of time but is a principle of good conscience dependent on the facts of each case.' Bailey v. Bailey, 50 Ala. App. 248, 278 So.2d 367 (1973); Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1951). However, in accordance with the general rules of equity, the mere lapse of time does not constitute laches precluding the seeking of relief after the remarriage of a party; it must appear that the delay has caused injury. If, therefore, the second marriage occurred soon after the divorce (here, one day later) and at a time when the other party to the decree could not have been expected to seek relief, it may be held that the delay did not cause sufficient injury to warrant the application of the doctrine of laches. 12 A.L.R. 2d, 162 §§ 5, 6; 24 Am. Jr. 2d, Divorce § 468.
An Alabama court in Lindley v. Lindley, 274 Ala. 570, 150 So.2d 746 (1963) quoted to 12 A.L.R. 2d 155, with approval:
"The consideration given to a second marriage is generally based on the assumption that innocent parties will be involved in an intolerable situation if the decree is vacated. But if the second spouse of a divorced person is not innocent, she or he is not entitled to much consideration in equity. Thus, where the second wife of the divorced man lived with him in adultery before the divorce, or if she knew or had notice of the facts justifying the vacation of the decree, she is not entitled to the consideration when determining whether to vacate the divorce decree. Somewhat similarly, it is often held that if the second marriage was 'hasty,' that is, if it occurred shortly after the decree was entered, it is not equitably entitled to much weight; and it may be noted that in such cases there is frequently room for suspicion that the second spouse is not an innocent party, or had knowledge of the facts rendering the decree voidable."
The fact that Patricia and Sam G~ were married in Mexico one day after the divorce decree tends to indicate in this claim, as in the Lindley case, that the second spouse was not an innocent party and that she had knowledge of the facts rendering the decree voidable. Thus, we conclude that laches is not applicable to prevent Kittye from asserting the invalidity of the divorce decree.
Thus, it is our opinion that, under Alabama law, the 1966 Mexican divorce of Sam and Kittye G~ is invalid, that the equitable doctrines of estoppel and laches do not apply to prevent Kittye from asserting the invalidity of said divorce, and that the subsequent marriage of Sam and Patricia G~ is invalid. We conclude that Kitrye G~ is the legal wife of Sam G~ within the meaning of 42 U.S.C. § 416(b).