VP3-23164.
Decided by Board July 7, 1954.
Marriage — Termination of — Divorce by mutual consent, China.
Under the law of China, husband and wife may effect a divorce themselves where they mutually consent to it in writing over the signatures of at least two witnesses. Where the marriage was celebrated in China between persons resident and domiciled in China; at least one of the parties retained domicile in China; the other party voluntarily consented to the agreement, thereby submitting to the jurisdiction of this form of divorce; and the marital res appears at all times to have been in China, a valid divorce decree has been entered in China.
BEFORE THE BOARD
Discussion: This case comes forward on appeal from an order of the district director dated May 27, 1953, denying the petition for issuance of immigrant visa on the ground that the petitioner has failed to establish that the beneficiary is his wife.
The petitioner, a native-born citizen of the United States, seeks nonquota status under section 101 (a) (27) of the Immigration and Nationality Act on behalf of his alleged wife. A marriage certificate has been submitted showing the performance of a marriage ceremony on October 11, 1952, at Scarsdale, N.Y.
The issue in the case involves the question of whether there has been a valid termination of the prior marriage of the petitioner. The petitioner was previously married at Shanghai, China, on June 18, 1946. According to the statement of facts submitted in the brief filed by counsel for the petitioner, the petitioner had resided in China from 1925 to 1946 and returned to this country in September 1946. His wife, however, failed to accompany him to the United States and on December 1, 1949, a divorce agreement was entered into between the petitioner and his first wife presumably at Shanghai, China.
Counsel for the petitioner contends that the divorce agreement constitutes a valid divorce under the provisions of Title 4 of the Civil Code of the Republic of China, Articles 1049 and 1050. The provisions of these articles are as follows:
Article 1049. Husband and wife may effect a divorce themselves where they mutually consent to it; but in the case of a minor, the consent of his or her statutory agent must be obtained.
Article 1050. Divorce by mutual consent is effected in writing and requires the signatures of at least two witnesses.
A memorandum prepared by the Far Eastern Law Section, Library of Congress, dealing with divorce by mutual consent under Chinese law is annexed hereto as "Appendix A."
Counsel asserts that these provisions are the only ones found in the Civil Code of the Republic of China relating to the manner of effecting a divorce, except where the parties do not agree when resort must be had to court action. He emphasizes that no residence requirements are set forth in the code. A certificate dated October 7, 1952, from the Consul General of the Republic of China at New York certifies that Mr. Y---- H---- and Mrs. H----, nee H---- J---- S---- were legally divorced by agreement on December 1, 1949.
It appears that the divorce agreement was signed by the petitioner while in the United States and that thereafter he returned it to his wife in China who also signed it before the signatures of two witnesses, thereafter she sent one copy to the petitioner and kept one copy for herself. It may be noted that this prior marriage was celebrated in China between persons resident and domiciled in China; that at least one of the parties retained the domicile in China; that the other party voluntarily consented to the agreement, thereby submitting to the jurisdiction of this form of divorce; and that the marital res appears at all times to have been in China. Both the provisions of the Civil Code of the Republic of China and the opinion of the Chinese consul general indicate a valid divorce decree has been entered in China.
In addition, there was no concealment of the prior marriage and the method of its termination when the parties hereto applied for a license to marry at Scarsdale, N.Y. A ceremonial marriage duly celebrated under the laws of a state carries with it a strong presumption of its validity and legality, and proof must be brought forward in order to overcome such presumption.
In the instant case, there is no finding as to the invalidity of the Chinese divorce by agreement, but it must be assumed that the conclusion of an invalid divorce decree was predicated upon reasoning to the effect that such a divorce decree was similar to a Mexican "mail-order" divorce decree. However, there is no compelling reason to conclude that this divorce decree was similar in nature to a Mexican divorce decree because of the presence of the various elements already set forth which would appear to confer jurisdiction upon the Chinese method of divorce in this case. As far as it appears, this divorce by agreement constituted a valid divorce decree in China. There is no showing that the State of New York, where the second marriage was celebrated, frowns upon such divorce decrees nor is there any finding that such a divorce decree was invalid in China. In view of the fact that the manner of the divorce was fully set forth in the license application, it would appear that New York granted full faith and credit or comity to the decree of termination of the prior marriage. There appears to be no rule of public policy violated nor any code of morals to which such a divorce is repugnant. It is, therefore, concluded that this divorce and subsequent marriage should be recognized as valid for immigration purposes ( Matter of P----, 56324/762, 4 IN Dec. 610 (Atty. Gen., 1952)).
Order: It is ordered that the appeal be sustained and that the visa petition be approved for nonquota status on behalf of the beneficiary.
APPENDIX A
Divorce by mutual consent under the law of the Republic of China
In considering the matter of divorce by mutual consent under the laws of the Republic of China, the following article of the Chinese Civil Code should prove of interest:
Article 1049. A husband and wife may effect a divorce by themselves where they mutually consent to it; but in the case of a minor, the consent of his or her statutory agent must be obtained.
No grounds for divorce are stated.
A divorce by mutual consent is a juristic act. The courts have stated in several cases who may be involved in this juristic act. The following quotations from two such cases may prove pertinent:
Whereas the husband and wife are the parties concerned in the marriage relationship, a divorce by mutual consent must be performed by themselves * * *. (1926; Appeal Court, No. 1993).
A divorce by mutual consent must be decided by the husband and wife. No other person can act in their behalf. (1918; Appeal Court, No 132).
The attitude of the courts on the question of the mutuality of the consent has been stated in the following three, among other cases:
The principle of freedom in marriage shall be construed to mean that in marriage the intent of the parties concerned must be respected. No third party may interfere with it. It does not mean, however, that one party must be divorced by the arbitrary will of the other, or that such may be permitted. (1928, Appeal Court, Shanghai, No. 729).
Freedom to contract a marriage or effect a divorce means that the interference of a third party is not permitted. It does not mean that one party may divorce the other arbitrarily, irrespective of the interest of the other. (1929, Appeal Court, No. 106).
In the marital relationship the intention of both parties concerned must be respected. Even though individuals may have freedom to contract a marriage or effect a divorce, it must be by mutual consent and not on the arbitrary will of one of the parties. (1931, Appeal Court, No. 1764).
A decision of 1941 outlines a possible role open to a third party.
A third party may be asked to act as an intermediary between husband and wife to convey a voluntary expression of intent, which is different from delegating another person to act as a legal representative to determine the effect of a juristic act. (1941, Appeal Court, No. 1606).
While a minor may under certain circumstances enter into marriage without the consent of his or her parents or guardian, there is no such exception provided in Article 1049 cited above. The Judicial Yuen has interpreted this point as follows:
Concerning divorce of a minor by mutual consent, Article 1049 of the Civil Code has already stipulated that such a divorce must have the consent of the statutory agent of such minor; and since no provision has been made for any exception to this requirement, a divorce secured without such consent must be declared invalid in accordance with Article 71 of the Civil Code. (1936; Judicial Yuen, No. 1543).
Article 71 reads as follows:
A juristic act which is contrary to a mandatory or prohibitive provision of law is void * * *.
The formalities with which those must comply who wish a divorce by mutual consent are set forth in Article 1050.
Article 1050. Divorce by mutual consent is effected in writing and requires the signatures of at least two witnesses.
The courts have dealt with this provision in several cases.
The following quotation is illustrative of their reaction:
Divorce by mutual consent must be executed in a written instrument which must bear the signatures of two or more persons, as is required by Article 1050 of the Chinese Civil Code. A divorce by mutual consent arranged in default of this provision shall be held to be legally invalid in accordance with Article 73 of the Chinese Civil Code. (1936, Appeal Court, Shanghai, No. 1306).
This article reads:
Article 73. A juristic act which is not in the form prescribed by law is void, unless otherwise provided by law.
Who may witness the instrument has been determined by the courts. In the decision of a 1939 case the court stated:
Article 1050 of the Civil Code, only prescribes that the form of divorce by mutual consent must be expressed in a document which must bear the signatures of two or more witnesses. Whereas, their is no stipulation to the effect that such witnesses must be acquainted with the parties concerned, it is, therefore, immaterial as far as the validity of the divorce is concerned, whether the witnesses have previously been acquainted with the husband and wife. (1939, Appeal Court, Shanghai, No. 353).
We have been unable to locate any definite statements in the material on hand on the question of the validity of an instrument signed by a husband before two witnesses in one country and by a wife before two different witnesses in another. It would seem that since the mutuality of consent which is basic to the act is present and the expression of this consent is formalized in a document signed by both parties in interest, the divorce by mutual consent ought to be valid. However, no positive statement has been found to this effect. The authorities are clear that such a divorce is not valid unless performed in accordance with the provisions of the law.
This memorandum does not purport to present a complete statement of the law of the Republic of China on the subject of divorce by mutual consent. It merely summarizes a few of the statutory provisions and judicial decisions dealing with the subject.