Case Update (7 Feb 2023): Adjei v. Mayorkas; Ghanaian divorce based on citizenship should be recognized as valid in Virginia, even though domicile was lacking
Mr. Adjei seeks legal status as the spouse of Ms. Boateng. Prior to their marriage, Ms. Boateng was married to a man named Mr. Gyasi. Both Boateng and Gyasi were Ghanaian, but were living in and domiciled in Virginia at the time they pursued, and secured, a legal customary divorce in Ghana through family members. The trial court concluded that Ms. Boateng's divorce from Gyasi should not be recognized as a matter of comity in Virginia, since neither party was domiciled in Ghana at the time, and, therefore, Mr. Adjei could not have legally married Ms. Boateng for purposes of securing citizenship in the USA.
"The Commonwealth [of Virginia] will only grant comity to an act of another sovereign if (1) the other sovereign had jurisdiction 'to enforce its order within its own judicatory domain,' (2) the relevant law of the other sovereign is 'reasonably comparable to that of Virginia,' (3) the decree was not obtained through fraud, and (4) enforcement of the other sovereign's decree would not be 'contrary to the public policy of Virginia.'" The court examined No. 2 and No. 4, as No 1. and No. 3 were not at issue.
The entire purpose of premising a divorce on domicile in the USA is to ensure a sufficient connection between the parties and the court's exercise of control over their marital status. But, another country may have a legitimate interest in the marital status of the parties even without domicile. Citizenship does present an interest in marital status that can exist, even without domicile. Even certain international agreements (like the Hague Convention on Recognition of Divorces and Legal Separations - of which the U.S. is not a Contracting State) recognizes citizenship as a basis/connection for purposes of divorce.
Citizenship "implies a nexus between person and place of such permanence as to control the creation of legal relations." "Thus, the citizenship of both parties in a nation provides that nation with a jurisdictional basis for granting the parties a divorce that seems 'reasonably comparable' to the relationship between a state and its domiciliaries." [Note - the typical rule in the U.S. is that one party, not necessarily both, maintain domicile in a state prior to seeking dissolution of their marital status in that state. This Fourth Circuit ruling seems to imply both parties must be nationals in the other country for that country to maintain sufficient connections to conclude a divorce that is recognizable in the USA.] Furthermore, while a Virginia court requires domicile of one party for a Virginia court to divorce that person, that is merely for a Virginia court to assume its own jurisdiction, and doest not directly implicate recognition and enforcement. Virginia does not have a separate provision in its law that specifically forbids recognition of a foreign divorce when neither party was domiciled in the foreign jurisdiction. Therefore, Ms. Boateng was divorced from her first husband, that divorce should be recognized because both spouses were citizens of Ghana where the divorce occurred, and therefore Ms. Boateng could legally marry Mr. Adjei.
The dissent disagrees that citizenship alone confers a sufficient relationship to the divorcing country to justify that country's exercise of jurisdiction in a manner that would permit (or require) enforcement of the foreign court's divorce decree. The dissent feels that the majority tries to re-write Virginia law, and takes its bare bones references to citizenship out of context from various inapplicable resources. Domicile is a fixed, "principal and permanent" home of a person. A person may only have 1 domicile, but can have numerous citizenships. Further, Ghanaian divorce law is quite different than that of Virginia. In Ghana, one need not even step foot in the country for years to secure a divorce, which the dissent felt would result in a divorce that should not be recognized as a matter of public policy.