Sommerich, Otto

English

SMU Digital Repository

Recognition of Mexican Divorces in
Europe (Part I)

Southern Methodist University

OTTO C. SOMMERICH tRecognition of Mexican DivorcesPart I*The continued interest that Private International Law takes inthe subject of extraterritorial recognition of divorce decrees is mani-fested by the draft convention on the subject prepared by the SpecialCommittee on Divorce for The Hague Conference on Private Inter-national Law ' and the priority given to the study of recognition offoreign decrees of divorce by the Law Commission of Great Britain.'The principle of comity, which is largely involved in so far asthe United States is concerned, has for the past years perhaps beenput to its severest test in the case of bilateral Mexican divorce decrees,based, as they usually are, on ephemeral "domicile" or "residence"contacts. Although no New York decision has refused to recognizesuch a bilateral Mexican divorce,' New Mexico, New Jersey, and Ohiohave denied its validity as a matter of their own public policy.'* Part II will appear in the next issue of The International Lawyer.t The author, a member of the New York Bar since 1899, is chairman ofthe Section's Committee on European Law. A graduate of Columbia Uni-versity Law School, he has written for many law reviews and legal periodicalsand is co-author with Benjamin Busch of Foreign Law-A Guide to Pleadingand Proof.1 Draft (Oct .5-15, 1965). The United States became a member of TheHague Conference in 1964, and Dean Erwin N. Griswold of the HarvardLaw School has participated in the deliberations of the said Special Committeesince 1965. Prof. Willis L. M. Reese credits Dean Griswold's effectivenessfor the fact that "The draft takes account in a surprising degree of the lawinterests of the United States." (The next issue of the American Journal ofComparative Law will carry an article by Prof. Reese on the subject). TheUnited Kingdom is actively participating in this convention, and Prof. Gravesonis the presiding officer of the Special Commission of The Hague Conferenceon the Foreign Divorce Convention.2 First Annual Report 1965-1966-The Law Commission (Her Majesty's Sta-tionery Office, 1966).8 Rosentiel v. Rosenstiel, 16 N Y 2d 64, 71, 209 N.E.2d 709, (1965); cert.den. 383 U.S. 943, 6 L. Ed. 2d, 282, 86, S.Ct. 1197. N.Y. Times June 7, 1966.4 id. See cases cited on p. 71. Prof. Henry H. Foster and Dr. Doris Freed, inan article on "Family Law" in the 1965 Annual Survey of American Law,International Lawyer, Vol. I, No. 1 'IQ40/ INTERNATIONAL LAWYERThe traditional acceptance by the courts of New York of suchbilateral divorces came to a sudden and unexpected jolt in 1963 and1964 when it was held by two New York lower courts that bona fidedomicile was intrinsically an indispensable prerequisite to jurisdictionand consequently to the recognition of foreign divorce decrees, andthat the minimal contact which sufficed for the purpose of obtaininga Mexican divorce did not meet that prerequisite.'The decisions of the highest appellate court of New York whichreversed the lower courts and which re-established in that jurisdictionthe recognition of these bilateral divorces, even in the absence ofmore than minimal domicile or residence contacts,' occasioned theaccompanying comparative study of the recognition of foreign divorcedecrees under European law. The countries under study include Aus-tria, Belgium, France, Germany, Italy, Netherlands, Spain, Switzer-land, United Kingdom, U.S.S.R., Sweden, and other Nordic countries.The facts in Rosenstiel v. Rosenstiel,' which illustrate the usualMexican bilateral divorce case, are fascinating in any attempt to cor-relate principles of domicile, jurisdiction, and comity. In that case,a husband, not a resident of Texas, arrived one day in 1954 in El Paso,Texas, registered at a motel, and the next day crossed the Mexicanborder to the City of Juarez, in the State of Chihuahua. He signedthe Municipal Register of that city, which is an official book for thelisting of its residents, and obtained a certificate of such registration.He then filed said certificate and a petition for divorce in the DistrictCourt at Juarez, alleging incompatibility with his spouse. All this tookapproximately one hour and the husband then returned to El Paso,Texas, and presumably, ultimately, to his original place of residence.The next day, in accordance with prior arrangements, a Mexicanattorney appeared for the wife under a power of attorney authorizinghim to act for her, and filed an answer submitting said client to thejurisdiction of the court and admitting the allegations of the com-plaint. A decree of divorce was granted that same day.state at pp. 389 ff.: "Indirect recognition has been given by the applicationof an estoppel against collateral attack, usually where the attacker is seekingfinancial gain, in Arizona, California, District of Columbia, New Jersey, NewYork and Texas, but there are cases rejecting the application of an estoppeldoctrine from Arizona, Arkansas, District of Columbia, Georgia, New Jersey,New Mexico and Ohio."5 Wood v. Wood, 41 Misc. 2d 95; Rosenstiel v. Rosenstiel, 43 Misc. 2d 462.6 Rosenstiel v. Rosenstiel, 16 N.Y. 2d 64 (July 9, 1965).7 Supra, n. 3.International Lawyer, Vol. I, No. 1Mexican Divorces-Europe /41The wife thereafter married Mr. Rosenstiel in New York in 1956and the latter instituted an action in 1964 for an annulment of themarriage on the ground that his wife's Mexican decree was invalidand that she was still married to her former spouse when she marriedRosenstiel.The proof of foreign law elicited at the trial and the determina-tion of which was taken from the jury I established that under theDivorce Law of the State of Chihuahua, the court has jurisdiction todecide the issues and to render a decree dissolving a marriage if theplaintiff is a resident of the state (Art. 22), or if either party is aresident of the state and the divorce is sought by mutual consent(Art. 22). The requisite residence referred to is sufficiently estab-lished by a certificate proving that the party has signed the MunicipalRegister of Residents (Art. 24). Even if proof is lacking of the entryin said register, the court has jurisdiction if it appears that both partieshave submitted themselves to the jurisdiction of the court (Art. 24).Such submission may be express or tacit (Art. 24).1Three separate opinions were handed down by the New YorkCourt of Appeals in Rosenstiel v. Rosenstiel, two concurring in thereversal of the lower courts and one dissenting. ° Judge Bergan heldthe divorce to be valid and with a majority of the court ruled thatthe decision established such validity, retrospectively as well as pro-spectively.1" Chief Judge Desmond concurred in the ultimate deter-mination, "but with the clear understanding that divorces of this sortgranted after the date of the decision of these appeals will be void inNew York State." 12 Judge Scileppi would have held these divorcesvoid, but would permit the appellant in the case to succeed on thisappeal."8 43 Misc. 2nd 462, 466.9 Each of the 30 states of the Republic of Mexico, its Federal District andtwo territories enacts its own divorce laws and the jurisdictional requirementsof each vary. Chihuahua requires the least actual residential contact. TheFederal District limits jurisdiction to the court of conjugal domicile. Thelatter is the domicile of the husband, except in instances of desertion whereit is the domicile of the deserted spouse. A presumption of domicile is estab-lished in the Federal District by residence of 6 months or more therein.10 16 N.Y.2d 64, at pp. 70, 75 and 79.11 Id., at pp. 70, et seq.12 Id., at p. 78.13 Id., at p. 79.International Lawyer, Vol. I, No. 142/ INTERNATIONAL LAWYERThe majority opinion viewed the question before the court to bethe following (at p. 71):There is squarely presented to this court now for the first time thequestion whether recognition is to be given by New York to a matri-monial judgment of a foreign country based on grounds not acceptedin New York, where personal jurisdiction of one party to the marriagehas been acquired by physical presence before the foreign court, andjurisdiction of the other has been acquired by appearance and pleadingthrough an authorized attorney although no domicile of either party isshown within that jurisdiction; and "residence" has been acquired by oneparty through a statutory formality based on brief contact.Although said opinion recognizes the Mexican statutory require-ments of domicile to be less exacting than those of New York State,it held "on pragmatic grounds" '" that it was necessary, in today'smobile era, to understand the concept of a marriage moving fromplace to place with either spouse and that the voluntary appearanceof the other would be sufficient to grant to the court involved com-petent jurisdiction over the marriage as a legal entity. The courtflatly stated that "domicile is not intrinsically an indispensable pre-requisite to jurisdiction," 1 citing (at p. 73): "(cf. Stimson, Jurisdic-tion in Divorce Cases: The Unsoundness of the Domiciliary Theory,42 Amer. Bar Assn. J. 222 [1956]; Griswold, Divorce Jurisdictionand Recognition of Divorce Decrees-A Comparative Study, 65Harv. L. Rev. 193, 228)," and that a balanced public policy requiresthat recognition should be given to a bilateral Mexican divorce ratherthan withheld and that such recognition "as a matter of comity offendsno public policy" of New York State.' 614 Id., at p. 72.15 Id., at p. 73.1 Id., p. 74. In the case of Shea v. Shea, 270 App. Div. 527, Judge Carswellheld that the question of validity of a bilateral divorce decree [in the UnitedStates of America] was the question of the policy of each State. He referredto the case In re Rhinelander, 290 N.Y. 31, where the New York State Courtof Appeals held: "It is no part of the public policy of this State to refuserecognition to divorce decrees of foreign states when rendered on the appear-ance of both parties, even when the parties go from this State to the foreignstate for the purpose of obtaining the decree and do obtain it on grounds notrecognized here." An interesting aftermath of Rosenstiel v. Rosenstiel is Chap-ter 54 of the Laws of 1966 of the State of New York enacting Sec. 250 of theDomestic Relations Law of that state, to the effect that proof that plaintiffwho obtained a divorce in another jurisdiction was domiciled in New Yorkwithin 12 months prior to commencing this foreign divorce proceeding andresumed his New York residence within 18 months after the date of hisdeparture from said foreign jurisdiction, shall be prima facie evidence thatInternational Lawyer, Vol. I, No. 1

https://scholar.smu.edu/cgi/viewcontent.cgi?article=4273&amp;context=til

Recognition of Mexican Divorces in Europe (Part I)

Abstract

Similar works

Full text

Available Versions

SMU Digital Repository

Southern Methodist University