TN 1 (08-09)
PR 05115.033 New Jersey
A. PR 09-153 Stanley G~ – Validity of Guyanese Divorce in New Jersey
DATE: August 13, 2009
New Jersey will recognize divorces obtained in foreign countries if the foreign court had jurisdiction and the foreign judgment does not offend New Jersey's public policy. Determining whether a foreign divorce meets these requirements and is valid is fact-specific. Under Guyanese law the number holder (NH) must have been domiciled in Guyana in order to be able to obtain a divorce. He was not required to be a resident. Even if there are doubts concerning the validity of the divorce, a New Jersey court may still find the divorce valid under the presumption of validity doctrine.
Whether the divorce in Guyana of Stanley A. G~, Number Holder (NH), and Claudette W. H~ (Claimant), is valid under New Jersey law.
OPINION We have determined that New Jersey will likely recognize the validity of the Guyanese divorce between the NH and claimant. Further, prior to the divorce, Claimant’s marriage to the NH lasted at least ten years.
1 A marriage license shows that the NH married Claimant in Irvington, New Jersey on August 14, 1990. The same marriage license lists Guyana as the birthplace of both the NH and Claimant. According to the Center for Programs Support (CPS) memorandum and correspondence, New Jersey has been the NH and Claimant’s regular residence since the date of marriage. The NH instituted an action of divorce in Guyana against Claimant in 2000. Claimant states she received notice of the divorce action, but did not respond. CPS has informed us that the NH’s ties to Guyana seem tenuous due to continuous work in the U.S. CPS has provided us with a document from the Guyanese High Court of the Supreme Court of Judicature, dated August 13, 2000 and entered September 4, 2000, regarding a decree of divorce between the NH and claimant.
A divorced wife of an insured person is entitled to benefits if the claimant is the insured’s divorced wife and: (1) the parties were validly married under state law; (2) the parties were married for at least 10 years immediately before the divorce became final; (3) claimant applied for benefits; (4) claimant is not married; (5) claimant is 62 years old or older throughout a month in which all other conditions of entitlement are met; and (6) claimant is not entitled to benefits based upon a primary insurance amount that is equal to or larger than the full husband’s benefit.2 20 C.F.R. § 404.331; see Social Security Act (Act) § 202(b). In determining whether a claimant qualifies as a divorced spouse under the Social Security Act, an adjudicator must determine whether a divorce is valid according to the law of the NH’s domicile at the time of filing an application for spouse’s benefits. POMS GN 00305.170(A)(2). In this case, assuming that NH was domiciled in New Jersey at the time of claimant’s filing for divorced spouse’s benefits, the law of New Jersey would apply to determine whether the divorce is valid.
New Jersey Law on Validity of Foreign Divorces
Under the principles of comity, divorces obtained in foreign countries will be recognized in New Jersey so long as: (1) the foreign court had jurisdiction, and (2) the foreign judgment does not offend New Jersey’s public policy. See Dominguez v. Munoz, FM-07-751-05, 2008 WL 4682024, at *4 (N.J. Super. Ct. App. Div. 2008) (citing Fantony v. Fantony, 122 A.2d 593, 596-97 (N. J. 1956)). Determining whether a foreign divorce meets these requirements and is valid is fact-specific; A New Jersey court will consider several factors, including the domicile of the parties, adequate notice of the application for the foreign divorce and any hearings, whether both spouses participated in the divorce proceedings, whether any support, asset division, and child custody provisions are fair and reasonable, and the similarity of the grounds for the divorce to like grounds in New Jersey. See e.g. Hirschkorn v. Hait, FM-021898-07, 2008 WL 695892, at *8 (N.J. Super. Ct. App. Div. 2008) (holding that the Israeli Rabbinical Court had jurisdiction over divorce and parties where parties were Israeli citizens married in Israel, living in Israel, and practicing Judaism, and wife was given notice and opportunity to participate in proceedings); Chaudry v. Chaudry, 388 A.2d 1000, 1005 (N.J. Sup. Ct. App. Div.1978) (holding Pakistani divorce valid where Pakistan had jurisdiction to enter a divorce because of the Pakistan citizenship of the parties, the wife’s residence in Pakistan, the judgment of an appellate court in Pakistan validating the divorce, and the wife’s notice of divorce and participation in appellate proceedings; further holding that the reason for the divorce, the incompatibility of the parties by reason of the wife’s emotional problems and the failure to effect a reconciliation is “not such a departure from grounds for divorce in this State as to justify nonrecognition on public policy grounds”); Kugler v. Haitian Tours, Inc., 293 A.2d 706, 709 (N.J. Super. Ct. Ch. Div. 1972) (enjoining sales of Haitian divorce packages in New Jersey because such divorces would not be recognized in New Jersey, given that Haitian law does not require domicile of either parties to a divorce and only requires a fleeting transitory presence).
Guyanese Law on Divorce
Because New Jersey courts inquire as to whether a foreign court had jurisdiction over the parties and divorce proceedings, we sought the foreign law expertise of the Law Library of Congress (LLC) to determine whether the divorce at issue would be valid under Guyanese law. The LLC provided an opinion letter on this issue dated July 31, 2009 (copy attached). The LLC has advised us that the laws and procedures respecting divorce in Guyana are contained in the Matrimonial Causes Act (the Matrimonial Act) and the Rules of Court (Matrimonial Causes) (the Rules). The law in force in 2000, at the time of this divorce proceeding and the most current available law are the same.
According to the LLC, the procedures for requesting a divorce require the presentation of a petition to the High Court either by the husband or the wife. The Rules require the petition to state whether there have been previous proceedings respecting the marriage, provide a description of the husband, list the residences of the parties and indicate the domicile of the parties, unless the wife has a different domicile, in which case only the domicile of the husband need be stated. The Rules further require the filing of an affidavit stating that the facts set out in the petition are true.
Again, according to the LLC, grounds for divorce, if submitted by the husband, are adultery, malicious desertion with or without adultery, cruelty, or unsound mind on the part of the respondent. The Matrimonial Act does not define the term “malicious desertion.”
Neither the Matrimonial Act nor the Rules expressly state what is required for a court in Guyana to have jurisdiction to grant a divorce. There is no requirement in the Matrimonial Act or the Rules that a petitioner for divorce actually be a resident in the country, and there are no reported cases from Guyana in which such a requirement has been judicially established. The LLC noted, however, that the Matrimonial Act gives the High Court jurisdiction under the common law in matrimonial causes. In determining what the guiding principles of common law are, Guyanese courts turn to English common law as guidance. At English common law, a court may assert jurisdiction not conferred on it by a statute if the petitioner is domiciled in England or Wales, even if the parties were married abroad or a breakdown of the marriage occurred abroad. Under English common law, there is a distinction between a domicile of origin and a domicile of choice. A person’s place of birth is normally his or her domicile of origin, whereas a domicile of choice is acquired by residing in another jurisdiction with the intention of making that jurisdiction his or her domicile of origin. When a domicile of choice is abandoned, a person reacquires his or her domicile of origin. The LLC advises that a Guyanese divorce petition must state the places of residence and at least the domicile of the petitioning husband; this suggests that a petitioning husband must at least be domiciled in Guyana to be able to obtain a divorce in that country
The Rules, like New Jersey law, require that parties be served notice of the divorce proceedings. The Rules require the service of a citation under the seal of the Court to each respondent in the case and they require the service of the citation to be “personal” unless the court grants permission for substitution of another form of service when personal service cannot be effected. After service has been effected, the citation must be returned and the certificate of service contained in it must be endorsed. Moreover, the Rules require that the petitioner file an affidavit stating that the respondent was “duly cited and has not appeared” before being able to proceed with the divorce action against a respondent who does not appear. Thus, attendance of both parties is not required in divorce proceedings in Guyana. Judges, however, do have discretion to decline to proceed ex parte if they do not believe it would be “expedient” to hear the case.
Finally, The LLC advised that a divorce decree is to be a decree nisi when it is first issued. A petitioner can petition for a decree nisi to be made absolute six weeks after it is obtained. During this period, the respondent can contest the divorce, even if she did not appear prior to the granting of the decree nisi. A divorce is not final until it is made absolute. Under Guyanese case law, a decree absolute is in effect from the day it is granted.
Turning to the facts of this case, the LLC concluded that the divorce decree appears to comply with the provisions of Guyana’s matrimonial causes legislation and rules. First, with regard to domicile, we note that under Guyanese law, the NH must have been domiciled in Guyana in order to be able to obtain a divorce. He was not required to be a resident of Guyana. In this matter, the NH was born in Guyana, making Guyana his domicile of origin, and the domicile he would reacquire if he subsequently had a domicile of choice (such as New Jersey) and had abandoned it. Further, Guyanese law required the NH to state both his residence and his domicile on the divorce petition and then to file an affidavit stating that the facts set out in the petition were true. Absent information that the husband perjured himself in the petition and the affidavit, it appears that a Guyanese court could assert jurisdiction to grant this divorce decree based on the NH’s stated Guyanese domicile, despite his seeming residence in New Jersey.
Second, with regard to the service of notice, Guyanese law required the NH to personally serve the respondent with a citation under seal of the court. After service, the citation must have been returned and the certificate of service contained in it endorsed. Thus, the Guyanese court had before it proof of service on claimant. Further, Claimant has stated that even though she did not respond, she did receive notice of the divorce action in Guyana. We believe that the divorce decree complies with New Jersey’s due process requirements. Compare Hirschkorn, 2008 WL 695892, at *8 (upholding Israeli divorce where wife was given fair notice of Israeli proceeding similar to the New Jersey procedural rules) with Ali v. Ali, 652 A.2d 253, 258 (N.J. Sup. Ct. Ch. Div. 1994) (finding Sharia Court divorce decree offended all due process requirements and was therefore unenforceable given that wife was never personally served with notice of proceedings but instead her notice consisted of her relatives knowing of divorce proceeding and an alleged phone call with her husband regarding the proceedings) (findings questioned subsequently by New Jersey courts regarding child custody, not divorce issue).
Third, the LLC has advised that the divorce in the instant case appears to comply with other provisions of Guyana’s matrimonial legislation and rules. The divorce decree appears to have been filed with the judge in August, making it a decree nisi, and granted six weeks later in September 2000, at which time the decree nisi became a decree absolute. The six weeks between the time that a divorce decree is first issued and made absolute provided the claimant with an opportunity to contest the divorce. A decree absolute is in effect from the day it is granted, so NH’s and Claimant’s divorce was in effect as of September 4, 2000, as indicated by the divorce decree document CPS provided.
Finally, the divorce decree in this case was granted on the grounds that the NH stated that claimant was “guilty of malicious desertion” and that the respondent failed to respond to the petition. The LLC has advised that Guyana’s Matrimonial Causes Act does not define the term “malicious desertion.” New Jersey similarly recognizes desertion as a ground for divorce. N.J.S.A. 2A:34-2. We believe a New Jersey court would likely find that the grounds for divorce in this case do not offend New Jersey public policy. See Chaudry, 388 A.2d at 1005 (finding that Pakistani divorce did not offend New Jersey public policy where grounds for divorce – incompatibility of parties by reason of the wife’s emotional problems – were not such a departure from New Jersey grounds for divorce).
Thus, we conclude that a New Jersey court would recognize the validity of the NH’s Guyanese divorce.
New Jersey Law on Presumption in Favor of the Second Marriage Even if there are doubts concerning the NH’s and claimant’s divorce, a New Jersey court may still find the divorce valid under the presumption of validity doctrine. New Jersey law recognizes a strong presumption favoring the validity of the latest of two successive marriages involving a common participant. See Prater v. Aftra Health Fund, 23 F. Supp. 2d 505, 508 (D.C.N.J. 1998); see also POMS GN 00305.035; PR 06210.033. The party challenging the validity of the second marriage has the burden of proving by clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was terminated by divorce. See Newburgh v. Arrigo, 443 A.2d 1031, 1035 (N.J. 1982); see also Prater, 23 F. Supp 2d at 508 (finding that wife’s assertion that a final judgment of divorce was never entered was not clear and convincing evidence to rebut presumption that marriage to decedent had been terminated by divorce).
When the validity of a foreign divorce is attacked, the challenger “must prove all defects, including lack of jurisdiction in the foreign courts.” Id; see also Raspa v. Raspa, 504 A.2d 683, 685-688 (N.J. Sup. Ct. 1985). In Raspa, plaintiff’s current husband attacked the validity of plaintiff’s previous divorce which was obtained in Mexico. In that divorce, plaintiff never received a summons and complaint, never appeared in any divorce proceedings in Mexico, received the final decree of divorce in the mail, and was told by someone that notice of action was published in a newspaper. The court found that plaintiff’s current husband failed to prove by clear and convincing evidence that plaintiff’s ex-husband did not go to or live in Mexico at the time of the divorce proceedings, that the ex-husband obtained a mail-order divorce, or that notice was not in fact published. Thus, even though there were doubts as to whether the manner in which plaintiff’s divorce was obtained comported with New Jersey’s due process requirements, the court found that the challenger had failed to meet his burden of disproving every reasonable possibility that the Mexican divorce was valid. Id.
Here, there is no evidence that any party is challenging the validity of the divorce. Further, since there does not appear to be clear and convincing evidence to the contrary, a New Jersey court will likely find that the NH’s subsequent marriage was valid and, by extension, that the NH and the claimant are no longer married.
Finally, based on the date of marriage in the certificate of marriage you have provided (August 14, 1990) and the date on which the divorce decree became absolute (September 4, 2000), Claimant’s marriage lasted at least ten years. POMS GN00305.035.
Based on the foregoing, a New Jersey court will likely find the divorce between the NH and claimant was valid. Further, prior to the divorce, Claimant’s marriage to the NH lasted at least ten years.
Stephen P. C~
Acting Regional Chief Counsel
Assistant Regional Counsel
1 CPS provided us with the following documents: a marriage license and a certificate of marriage for the NH and the claimant, a document from the Guyanese High Court of the Supreme Court of Judicature, dated August 13, 2000, and entered September 4, 2000, regarding a decree of divorce between the NH and the claimant, and a record of marriage for the NH and Yvonne D. A~. Other facts are derived from a memorandum and e-mail correspondence between CPS and the Office of General Counsel. This opinion is based on the facts as presented.
2 To be entitled to benefits as an independently entitled divorced spouse, claimant must also have been divorced from the insured for at least two years. 20 C.F.R. § 404.331(f) CPS has also provided us with a marriage license showing that the NH married Yvonne D. A~, also born in Guyana, on February 14, 2002 in Plainfield, New Jersey.