PR 06405.054 West Virginia
A. PR 88-025 Recognition of Mexican Divorce by West Virginia, Patrick R. I~
DATE: September 28, 1988
DIVORCE - Rights of Prior Spouse Terminated by Estoppel to Assert Invalidity of Divorce -'WVA.
An individual who performed some act which recognized the validity of a divorce decree or who accepted the benefits of the divorce would be estopped from challenging an otherwise invalid divorce. The doctrine of laches also applies to foreign divorces; a long delay in challenging a divorce is sufficient to preclude a challenge to the divorce on the basis of laches. (I~ Patrick R. ~ ~-RA Ill (A~) to RC,SSA (09/28/88)
Patrick R. I~ married Pauline V. C~ 1_/ on October 2, 1942, and obtained a Mexican divorce from her on May 27, 1968. The divorce decree recites that Mr. I~ personally appeared before the court and that an attorney appeared on behalf of Ms. C~. Mr. I~ has said that he spent forty-eight hours in Mexico (Report of Contact September 24, 1985), but he has also said that he lived in Mexico from April to July, 1968 (Statement of Claimant or Other Person, undated but apparently attached to note dated October 22, 1985). According to Mr. there was a property settlement pursuant to which Ms. C~ received their house and two-thirds of the money in their bank account. On September 4, 1973, Mr. I~ married Helena d~ K~ in Best, Holland. He died on December 6, 1987, apparently domiciled in West Virginia, although he died while on vacation in Best, Holland.
You have requested our opinion whether a West Virginia court would "recognize validity of the Mexican divorce under the principle of estoppel." The question as stated is based on a misunderstanding. A court's application of the doctrine of estoppel in a case in which a divorce is being challenged does not mean or imply that the court recognizes the divorce as valid. In fact, the question of estoppel is usually reached only where the divorce is otherwise determined to be invalid. Rather, estoppel is a bar which may preclude a particular party from denying the validity of a divorce. We understand your question to be whether Ms. C~ would be estopped to deny the validity of the otherwise invalid Mexican divorce obtained by Mr. I~ We believe that she probably would be.
There is no case law directly on point. The only West Virginia case we have found discussing estoppel in the context of a challenge to the validity of a divorce is Gardner v. Gardner, 110 S.E.2d 495 (W. Va. 1959). In that case, plaintiff sought an annulment of his marriage to defendant, on the ground that a divorce plaintiff himself had obtained in Tennessee before his marriage to defendant was void. Plaintiff was not at any time a resident of Tennessee, and was there for less than a day. A few months after the Tennessee divorce decree, plaintiff-married defendant. About a year and a half later, he separated from defendant, and shortly after the separation, a child was born to defendant. The court found that the divorce was invalid since neither party was domiciled in Tennessee. The defendant argued inter alia that plaintiff was estopped to challenge the validity of the Tennessee divorce. The court cited section 48-2-1 of the West Virginia Code which provided that "all marriages which are prohibited by law on account of either of the parties having a wife or husband then living . . . shall be void from the time they are so declared by a decree of nullity," and section 48-2-2, which provided that "either party may, except as provided in the next succeeding section, institute a suit for annulling or affirming" a marriage.
"The next succeeding section", Code, 48-2-3, provides that under certain circumstances a party to a marriage may not institute a suit to annul it. Genera!]y speaking, it sets out instances in which a party at fault, or a party who by conduct has affirmed a marriage, may not institute a suit to annul such marriage. But it is significant that the statute omits to prohibit either party to a bigamous marriage from instituting a suit to annul it. The Revisers' Note points out the reason for this significant omission as follows: "This new section announces only the well-known principles that the party to a wrong may not invoke the aid of a court to right the wrong, and that a party who has acquiesced in a situation, or confirmed a state of Facts, may not ask for relief therefrom. Care is taken not to prevent the bringing of suits to annul marriages, by even the parties in the wrong, in the several cases involving public policy and morals, as for instance, the existence of a former wife or husband * * *." (Italics supplied.) From the statutes and the Revisers' Notes quoted above, there is disclosed a legislative intent that neither party to a bigamous marriage should be precluded, either by estoppel or by the "clean hands" doctrine from instituting a suit to annul such marriage, at least where the purpose of the annulment suit relates only to the marriage status, as distinguished from private rights in property, for instance.
110 S.E.2d at 501-02 (emphasis in the original). The court concluded that the doctrine of estoppel "will not be applied to deny relief when the purpose of the annulment suit relates only to the marriage status, as distinguished from pecuniary or property rights," and in this particular case the court held that plaintiff would not be estopped from challenging the validity of the divorce. Id. at 503.
Although the statutes cited by the court have been recodified with some changes in wording, there does not appear to have been any substantive changes in the provisions discussed by the court. See W. Va. Code §§ 48-2-2 and 48-2-3 ((1986). Gardner therefore appears to remain the law in West Virginia, with the result that one may conclude that a party to a bigamous marriage will not be precluded from seeking to annul the marriage, even .when the bigamy results from the invalidity of a divorce obtained by the party himself. ? However, this result is not determinative here, since, as noted above, estoppel applies to particular parties in particular contexts, and the issue here is whether the validity of a divorce may be challenged by somebody who was a party to the divorce but who is not a party to a subsequent marriage that is a bigamous marriage if the divorce is invalid. The court's holding is based on statutory provisions and the court's apparent hostility to estoppel in this context does not necessarily extend to other situations.
Absent any West Virginia case law on point, we may turn for guidance to principles that are generally accepted by American Courts. It is widely accepted that a person will be estopped to challenge a divorce decree if he or she performed some act which recognized the validity of the divorce decree or accepted the benefits of the divorce. 27C C.J.S. Divorce § 800 (1986). In the instant case, it appears that Mr. I~ and Ms. C~ entered into a property settlement. The acceptance by Ms. C~ of the property settlement can reasonably be construed as recognition of the validity of the divorce decree and an acceptance of its benefits. Moreover, the doctrine of laches has also been held applicable to foreign divorces, id., and a delay of twenty years, during which time the other party to the divorce has remarried, would appear sufficient to preclude a challenge to the divorce on the basis of laches. We therefore believe that a West Virginia court would be likely to hold that Ms. C~ was precluded from challenging the validity of the divorce decree obtained by Mr.
1_/ Both Pauline C~ and Helena d~ K~ whom Mr. I~ married after his divorce from Ms. C~, will be referred to in this memorandum by their maiden names.
2_/ In particular, the Gardner case makes clear that Ms. d~ K~ could have brought an action to annul her marriage to Mr. I~ and Mr. I~ could have brought an action to annul his marriage to Ms. d~ K~. Since you may have to deal with the question of the validity of the marriage between Mr. I~ and Ms. d~ K~, it is worth noting that West Virginia has by statute modified the common law rule that bigamous marriages are void ab initio and has made them voidable; i.e., bigamous marriages in West Virginia become void only by judicial decree of nullity. "The general rule is that a voidable marriage is regarded as practically valid until its nullity is declared by a court of competent jurisdiction within the lifetime of the parties." Harvey v. Harvey, 298 S.E.2d 46 472 (W.Va. 1982) (quoting Sledd v. State Compensation Commissioner, 111 W.Va. 509, 163 S.E.2d 12 (1932). Since evidently no order or decree has been entered in a court of competent jurisdiction declaring the nullity of the marriage between Mr. I~ and Ms. d~ K~, the marriage would be regarded as valid in West Virginia. The fact that the marriage ceremony was performed in Holland and that Helena d~ K~ was not a domiciliary of West Virginia at the time of the ceremony does not, in our opinion, affect this conclusion. may be that because the marriage ceremony was performed in Holland, a West Virginia court, in determining whether the marriage was void, would attempt to determine the validity of the marriage there. It is also possible that a West Virginia court would accept a judgment or decree of nullity entered by Dutch court. However, it remains true that under West Virginia law the marriage would not be void until its nullity was decreed. by a court of competent jurisdiction. Although we do not disagree with the result reached in the OGC precedential opinion included in your file, "Julio J. M~, Account NO. ~" (December 13, 1962), D-7845, we believe that West Virginia statute regarding voidable marriages, now codified, at W. Va. Code §48-2-2 (1986), would apply to any challenge the validity of a marriage in a West Virginia court.