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Virginia recognizes Ghanaian ‘customary law’ divorce

Where two citizens of Ghana were divorced pursuant to Ghanaian customary law, Virginia would recognize that divorce, although neither person was present nor domiciled in Ghana at the time.


Barbara Boateng and Kingsley Kwame Gyasi — both Ghanaian citizens — divorced pursuant to Ghanaian customary law. At the time of the divorce, neither Boateng nor Gyasi was present or domiciled in Ghana.

Michael Antwi Adjei then married Boateng. But when Adjei applied to become a naturalized citizen, United States Citizenship and Immigration Services, or USCIS, determined that he and Boateng were not validly married. USCIS reasoned that Virginia would not recognize a divorce granted by a nation where neither spouse was domiciled at the time of the divorce. The district court granted summary judgment to USCIS.


The commonwealth 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 first and third requirements are not at issue. With respect to the second requirement, Virginia will only grant a divorce if at least one spouse is domiciled in Virginia at the time of the divorce. Moreover, Virginia will not recognize a divorce granted by a sister state unless one spouse was domiciled in that state at the time of the divorce. USCIS thus argues that Virginia also would not recognize a divorce granted by a foreign nation unless one spouse was domiciled in the foreign nation at the time of the divorce.

However the decision USCIS relies upon emphasized the power of both domicile and citizenship to provide a sovereign authority over its own people. Moreover, no Virginia appellate court has ever refused to recognize a divorce obtained in a foreign country by citizens of that country because neither spouse was domiciled there at the time of the divorce.

Virginia considers divorces granted by a sister state to two non-domiciliaries problematic because a state in which neither party is domiciled usually lacks a connection to the parties that would justify its exercise of control over the spouses’ marital status. This concern does not exist when a foreign nation, like Ghana, grants a divorce, valid under its own laws, to its own citizens. For these reasons, this court believes that, if faced with the question, the Supreme Court of Virginia would consider Boateng and Gyasi’s citizenship in Ghana, the nation in which the divorce was granted, to be an acceptable alternative to domicile.

Turning to the fourth factor, USCIS maintains that Virginia Code § 20-97 compels the conclusion that any divorce issued in the absence of domicile violates the public policy of Virginia. But this statute simply establishes that domicile is required for Virginia’s own courts to grant a divorce. It does not prohibit the recognition of out-of-state divorce decrees granted in the absence of domicile. Nor does it follow that Virginia would refuse to recognize, as a matter of comity, a divorce issued by a foreign nation simply because Virginia itself would not grant a divorce under similar circumstances.

Furthermore, the Supreme Court of Virginia has repeatedly recognized that the public policy of Virginia favors recognizing divorces whenever possible, so that one’s marital status does not change with one’s location. Accordingly, the judgment of the district court is reversed and remanded with instructions to grant Adjei’s application for naturalization.

Reversed and remanded with instructions.

Dissenting opinion

Wilkinson, J., dissenting:

There is no indication that Virginia would recognize non-domiciliary divorces — i.e., divorces granted by jurisdictions in which neither spouse is domiciled. I would not get ahead of the Virginia Supreme Court and purport to transform Virginia’s law in this way.

Because this case concerns an alien seeking American citizenship, all “doubts should be resolved in favor of the United States and against the claimant.” It is at the very least doubtful that Virginia would extend comity to a divorce granted by a foreign country to non-domiciliaries. I would therefore hold that the petitioner has not carried his burden to show that Virginia would recognize the Ghanaian divorce at issue.

Adjei v. Mayorkas, Case No. 21-1615, Feb. 7, 2023. 4th Cir. (Motz), from EDVA at Alexandria (O’Grady). Annigje Johanna Buwalda for Appellant. Catherine M. Yang for Appellees. VLW 023-2-033. 26 pp.

VLW 023-2-033

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