TN 1 (03-06)
PR 06405.040 Oklahoma
A. PR 04-104 Recognition of Mexican Divorce Under Oklahoma Law - Donald L. M~, ~
DATE: August 20, 1986
Oklahoma court would not recognize a Mexican divorce as valid when neither of the two parties domiciled in Mexico. The applicant for wife's benefits would be estopped from denying the validity of the Mexican divorce.
We are responding to your request for an opinion as to whether Oklahoma would recognize a Mexican divorce obtained by the husband or whether the wife would be estopped to deny the divorce. For the reasons stated below, we believe that although Oklahoma would not recognize the divorce, the wife would be estopped to deny the divorce.
According to the facts provided, on November 11, 1964, Donald L. M~, through his attorney, petitioned for divorce in Juarez, Mexico, from his wife, Vada E. M~. Neither Donald nor Vada M~ lived in Mexico. The court notified Vada E. M~ of the divorce proceeding in early November, 1964. The Juarez court granted the divorce on December 5, 1964. Vada M~ neither contested nor appealled the divorce. The record indicates that Donald M~ has remarried and lives in Oklahoma. Vada M~ lived in Virginia and has not remarried.
Your request mentioned a February 4, 1972, opinion from this office on Herbert G. S~, ~. That opinion states that Oklahoma would not recognize a Mexican divorce when the plaintiff does not reside in Mexico. The opinion relied on an Oklahoma Supreme Court decision, Kirk v. Kirk 238 P.2d 808 (1951). Our research reveals no subsequent decision which would overrule Kirk. Therefore, Oklahoma would not recognize the M~ divorce because Donald M~ never resided in Mexico.
Although the divorce is invalid under Oklahoma law, Vada M~ may be estopped from denying its validity. Vada M~ was notified that Donald M~ had filed for divorce and she did not contest it. Further she did not appeal the divorce decree. In Kirk, discussed above, the defendant wife never knew of the divorce proceeding.
It is an accepted principal of equity that a person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for that person to do so. Restatement (Second) Conflict of Laws, §74(1971). Our research has found no Oklahoma case which has decided the question of whether a spouse would be estopped from denying an invalid Mexican divorce because of the passage of time. Oklahoma has recognized the doctrine of estopped in connection with divorce proceedings in other situations. See Martin v. Martin 511 P.2d 1097,1100 (Okla. Supreme Court, 1973); Smith et al. v. Smith 242 P.2d 436, 438 (Okla. Supreme Court, 1952).
This is our opinion that Vada E. M~ would be estopped from denying the validity of the Mexican divorce. Vada knew of the divorce and made no effort to contest it. Further, twenty-two years have passed since the divorce and Donald has remarried. It would be inequitable to allow Vada to contest it now.
/s/ Thomas S~
Assistant Regional Counsel