You have requested our assistance in determining the validity of a 1981 Haitian divorce
We understand that Evelyn G~ and Allen T~ were married in Oak Creek, Wisconsin on
February 19, 1981. On July 17, 1981 the couple arrived in Haiti where on July 20,
1981 they were granted a judgment of divorce on the grounds of "incompatibility of
character." The divorce decree indicates and Ms. G~ admits that both parties were
residents of Wisconsin at the time. She states that they went to Haiti because it
was "cheaper and faster."
Based upon a recent opinion from this office. 1_/ pertaining to Wisconsin's recognition
of a 1975 Haitian divorce, you concluded that Ms. G~ divorce is not valid. Ms. G~
and her attorney, citing Wisc. Stat. §767.21, argue that under the Wisconsin Divorce
Reform Act of 1977, a Haitian divorce granted to Wisconsin residents would be recognized
in Wisconsin. They cite no other authority and make no other arguments except to assert
that since the divorce was not obtained "to avoid any of the laws of the state of
Wisconsin" it is valid. We do not agree. We conclude that this divorce is not valid
Prior to the passage of the Wisconsin Divorce Reform Act of 1977, a Wisconsin divorce
could be granted only upon a showing of statutory grounds. Wisconsin statutes specifically
refused to recognize divorces from foreign jurisdictions which were not based upon
one of the grounds available under Wisconsin law. The relevant statute provided:
[I]f any inhabitant of this state go into another state, territory or country for
the purpose of obtaining a decree of divorce for a cause which occurred while the
parties resided in this state, or for a cause which is not ground for divorce under
the laws of this state, a decree so obtained shall be of no force or effect in this
state. Wisc. Stat. §247.21 (1959).
The 1977 Act, which eliminated the requirement of demonstrating grounds for divorce,
changed this provision to the following:
(2) Actions in courts of foreign countries. Any court of this state may recognize
a judgment in any action affecting the family involving Wisconsin domiciliaries, except
an action relating to child custody, by a court of competent jurisdiction in a foreign
country, in accordance with the principles of inter- national comity. (emphasis added)
Wisc. Stat. §767.21
Claimant, in her argument, implies that this change demonstrates a legislative intent
to liberalize the state's recognition of foreign divorces. However, in enacting the
1977 statute the legislature emphasized that it did not intend to ease any of the
procedural requirements for obtaining a divorce:
This act is not intended to make a divorce, annulment or legal separation easier to
obtain. Its sole purpose is to promote an equitable and reasonable adjudication of
the economic and custodial issues involved in marriage relationships. L. 1979 c.196
Ms. G~ own statements indicate that she wished to avoid the procedural requirements
of Wisconsin law. It was "cheaper and faster" to go to Haiti. To conclude that such
a divorce is valid would, in effect, made a divorce easier to obtain, contrary to
Moreover, even without considering this legislative history, the statute, on its face,
does not support the claimant's position. The statute states that recognition of foreign
divorces would be "in accordance with the principles of international comity." International
comity does not require recognition of foreign divorces where the parties have sought
to avoid the procedural requirements of the state of domicile. Further, comity requires
that the foreign court have jurisdiction. As has been noted in a prior opinion:
[Foreign decrees] may be recognized on the basis of comity if the domestic court is
satisfied that the foreign court had jurisdiction, the ground for divorce are consistent
with policies of the forum state, and due process was followed. Ordinarily, domestic
courts will not recognize a divorce obtained, in a foreign country if neither spouse
had a domicile in that country. (emphasis added) N~ C~ , ~, RA IV (S~ ) to Reg. Rep.,
SSA IV (3/5/7 3).
Wisconsin has codified this jurisdictional requirement. Under the provisions of Wisc.
Stat. §767.22, the Uniform Divorce Recognition Act, a foreign court must have subject
matter jurisdiction for the divorce to be considered valid. Where the parties are
domiciled in Wisconsin, the foreign court lacks such jurisdiction. As the Act provides:
(1) A divorce from the bonds of matrimony obtained in another jurisdiction shall be
of no force or effect in this state, if the court in such other jurisdiction lacks
subject matter jurisdiction to hear the case because both par- ties to the marriage
were domiciled in this state at the time the proceeding for the divorce was commenced.
(2) Proof that a person obtaining a divorce in another jurisdiction was (a) domiciled
in this state within 12 months prior to the commencement of the proceeding therefor,
and resumed residence in this state within 18 months after the date of his departure
therefrom, or (b) at all times after his departure from this state, and until his
return maintained a place of residence within this state, shall be prima facie evidence
that the person was domiciled in this state when the divorce proceeding was commenced.
(3) This section shall be so interpreted and construed as to effectuate its general
purpose to make uniform the law of those states which enact it.
(4) This section may be cited as the Uniform Divorce Recognition Act. (emphasis added)
Although Wisconsin courts have no reported decisions under this section, the Uniform
Divorce Recognition Act has also been enacted in California, where, in a similar situation,
the appellate court found the divorce invalid. In the case of Sohnlein v. Winchell, 230 Cal. App. 2d 508, 41 Cal. Rptr. 145 (1964), the husband resided in California
from 1933 until his death in 1960. In 1959 he went to Mexico for two or three days
where he obtained a divorce, his wife having been personally served. At that time,
in addition to the Uniform Act, California had a statute in effect which provided
a very liberal criteria for the recognition of foreign judgments:
A final judgment of any other tribunal of a foreign country having jurisdiction, according
to the laws of such country, to pronounce the judgment, shall have the same effect
as in the country where rendered and also the same effect as final judgements rendered
in this state. Cal. Civ. Code §1915.
Despite the language of this section, which, significantly, is more liberal than Wis.
Stat. §767.21, the California court found that the divorce was invalid. In reaching
its conclusion the court stated:
[W]here the foreign jurisdiction has no legitimate interest in the status of the parties,
or where the sole purpose of seeking the divorce in the foreign jurisdiction is to
evade the policy of this state, the judgment should not be recognized .... 41 Cal.
Rptr. at 147.
Here, the Haitian Court had no legitimate interest in the status of the parties. Ms.
G~ went there to avoid the costs and time involved in pursing the matter in the appropriate
Wisconsin court. Thus, under the rationale of Sohnlein, as well as the plain language of Wisconsin's statutes, the divorce should not be