MATTER OF F— . 

In VISA PETITION Proceedings 

A-12027843 

Decided by Board May 6, 1961 

Marriage—Effect of annulment—Validity of marriage contracted in Belgium 

prior to annulment of preexisting marriage--Adopted child—Adoption proceedings by wife in maiden name without participation of husband. 

(1) Where beneficiary did not obtain annulment of preexisting marriage until three years after ceremonial marriage to petitioner in Belgium in 1955, 

general rules relating to effect of nullity aecrees will be applied, absent 

evidence that the law of Belgium is otherwise, to uphold validity of beneficiary's marriage to petitioner. 

(2) Notwithstanding that adoption proceedings under Belgian law were solely 

by wife in her maiden name. minor beneficiary qualifies as "adopted child" 

of petitioner/husband upon showing made that bona fide family relationship 

has existed since adoption and that requirements as to custody and residence 

have been satisfied. 

BEFORE THE BOARD 

DISCUSSION: The case comes forward on appeal from the order 

of the District Director, Newark District, dated December 9, 1960, 

denying the visa petition filed in behalf of the adult beneficiary 

as the wife of the petitioner for the reason that the validity of 

the petitioner's marriage on September 22, 1958 (sic) at Liege, Belgium, has not been satisfactorily established, although not established 

as invalid by the Belgian authorities, inasmuch as the wife's prior 

marriage on June 3, 1946, to M—S— was not terminated until 

the annulment granted June 6, 1958, at Aachen, Germany ; and as 

to the minor beneficiary, for the reason that the legal relationship 

of A—R—Z— to petitioner of either adopted child or stepchild has 

also nut been satisfactorily established as hor. adoption February 3, 

1956, at Liege, Belgium, was solely by the wife under her maiden 

name, although shown to be the petitioner's wife, and the petitioner 

was not a party to the adoption proceedings inasmuch as he was 

under the age required by Belgian law. This confusing statement 

of the grounds for denial is not clarified by any supporting memorandum, although it is obvious that complex legal questions are 

involved. 

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The petitioner, a native of the L'ition of Soviet Socialist Republics, 

39 years old, male, is a lawful permanent resident alien, having been 

admitted for permanent residence. in the United States on March 23, 

1960. He seeks preference status under section 203(a) (3) of the 

Immigration and Nationality Act on behalf of his wife, a native 

and lust a citizen of the U.S.S.R., 44 years of age. He also seeks 

third preference status on behalf of the minor beneficiary, who is a 

native and citizen of Belgium, six years of age, as his adopted 

daughter. 

We shall deal first with the case of the wife. The petitioner has 

established a ceremonial marriage to the beneficiary on September 22, 

1955, at Liege, Belgium. The petitioner was married but one time 

and his wife was married twice prior to her marriage to the petitioner. The beneficiary was first married in Germany on June 3, 

1946, and this marriage was annulled by the decree of the District 

Court at Aachen, Germany, on June 0, 1958. The eireiuustatices 

surrounding this marriage are set forth in the brief filed in behalf 

of the petitioner. It is alleged that the beneficiary's family was 

persecuted by the Soviets and that she was taken as an "Ostarbeiter" to Germany. In 1946, when forced repatriation was still 

the general practice in Germany, she was under the threat of being 

forcibly returned to the U.S.S.R. She was given to understand by 

an UNRRA worker that her only salvation would be to marry a 

non-Russian person and for this reason she married an old man 

named S of Latvian nationality. The beneficiary never lived with 

her first husband and has never heard of him since their wedding, 

but -by so marrying this person she escaped repatriation. It is alleged 

that the beneficiary considered her marriage fictitious and that it 

,would never be considered a legal, binding marriage. Subsequently, 

she went to Belgium where she married on June 1 5, 1948, this marriage being terminated on October 15, 1954, by a divorce granted 

pursuant to Article 230 of the Civil Code of Belgium in the Court 

of Justice at Liege, Belgium. Her marriage to the petitioner took 

place in Belgium on September 22, 1955, after the termination of her 

second marriage but prior to the annulment of the beneficiary's 1946 

marriage. 

No consideration appears to have been given below to the circumstances surrounding the first marriage or to the legal consequence 

of a dissolution by an annulment (rather than a divorce) of the 

first marriage despite the fact that a letter has been submitted 

under the seal and signature of the Royal Public Prosecutor at 

Liege, Belgium, dated October 21, 1959, to the effect that the marriage contracted by the parties on September 22, 19bb, was regarded 

as valid and that no proceedings were ever instituted or contemplated against the beneficiary. It is to be noted that the petitioner 

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did not come to the United States until March 23, 1960, and presumably relied upon this letter to establish the validity of his marriage 

to the beneficiary for it would have been no problem for the petitioner to have remarried after the decree of annulment had they 

been so advised since both parties were then residing in Belgium. 

The record contains no indication that the petitioner was questioned 

about the marriage. 

There is an important difference between divorce and annulment. 

A decree of divorce dissolves the marriage and relieves the parties 

of their obligations as husband and wife; but it recognizes that 

the relation had a lawful existence, of which the consequences continue, even though the relationship has terminated. This a nullity 

decree does not do. It is granted for causes antedating the marriage and its legal effect is to say that the marriage never existed.' 

A statute may make an annulment operative from the time of the 

decree, so that the action becomes practically the same in effect as 

that for divorce. However, since no specific foreign statute in this 

regard has been cited, it will he assumed that the general rule set 

forth above prevailing in this country applies. The second letter 

from the Royal Public Prosecutor at Liege, dated September 30, 

1960, confirms this assumption, because he comments that the annulment of the first marriage by the tribunal at Aix-la-Chapelle 

(Aachen) makes inopportune any further comment on the invalidity of the marriage of September 22, 1955. 

In view of the circumstances surrounding the beneficiary's first 

marriage, i.e., that it was a fictitious marriage entered into for 

the purpose of escaping repatriation, the allegation that the beneficiary has never lived with the person she married and has never 

heard of him since the time of the so-called wedding, together with 

the presumption of validity attached to the present ceremonial 

marriage and the effect of the decree of nullity entered as to the 

first marriage, it is concluded that the petitioner has satisfactorily 

established the validity of his present marriage to the beneficiary. 

Accordingly, the visa petition will be approved for third preference 

quota on behalf of the adult beneficiary as the wife of the petitioner. 

The petition for third preference status on behalf of the second 

beneficiary has been denied by the District Director on the ground 

that the legal relationship of the minor beneficiary to the petitioner as either his adopted child or stepchild has also not been 

satisfactorily established as her adoption on February 3, 1956, at 

Liege, Belgium, was solely by his wife under her maiden name 

(although she was shown to be his wife) and he was not a party to 

'Goodrich, Conflict of Laws (1949), p. 417; Madden, On Persons and Domestic Relations (1931 ) , v. 203. 

277 
the adoption proceeding inasmuch as he was under the age required 

by Belgian law. Petitioner's brief points out that the letter of 

Joseph Selma, an attorney at Liege, Belgium, dated September 1, 

1960, and certified under the seal of the Lower Court, recites the 

judgment confirming the actual adoption rendered by the 4th 

Chamber of the Lower Court at Liege on December 24, 1955, upon 

petition of the wife; the child to bear the surname of the wife's 

maiden name; and that only the wife could adopt the child because 

at the time of adoption her husband had not yet reached the a of 

35 years according to Article 344 of the Belgian Civil Code (law 

of March 22, 1940) and could not adopt the child; and that in accordance with Article 347 of the Code, only the name of the young woman 

adopting the child could be conferred on the adopted child. According to the letter of the Royal Public Prosecutor at Liege dated 

October 21, 1959, the actual adoption of the child by the wife of 

the petitioner is regarded as valid by the Royal Public Prosecutor. 

The child has resided with her adoptive mother and the latter's 

husband, the petitioner, since the date of adoption on December 24, 

1955, when the child was a little over one year of age. The adoption appears to comply with the requirements of section 101(b) 

(1) (E) of the Tmmigration and Nationality Act, in that, the adoption occurred when the child was under 14 years of age and she has 

been in the legal custody of, and has resided with, the adoptive 

parent or ,parents for more than two years. The petitioner described the beneficiary as his adopted daughter and the brief describes him as a loving and devoted father. There is no evidence 

challenging the bona fides of the family relationship involved. 

It is believed that the case falls within the scope of the Attorney 

General's decision in Matter of Y—K—W—, 9-176 (Feb. 28, 1961), 

which specifically overrules Matter of U—F—L—, 8-151, upon 

which the District Director's denial appears to be based. The 

child beneficiary in this ease was adopted by the wife during the 

marriage; the husband who was prevented from participating in the 

adoption by a technicality has consented to the adoption and supported the child who has resided with both the adoptive mother 

and her husband, the petitioner, and has been in the legal custody 

of both for more than two years past. 

The following pertinent extracts from the Attorney General's decision in Matter of Y—K—W—, eupra, reveal the present administrative view in a bona *le adoptive family situation such as exists 

in this case: 

Once the remedial purpose of preserving, rather than interrupting, bona fide 

family relationships ... is recognized, the reasoning in Ng Fun Yin v. Esperdy 

[187 F. Supp. 51] appears to be compelling.... 

... In this case there has been no challenge to the bona fides of the family 

relationships Involved. The validity of the marriage of the parents and the 

27B 
adoption of llie child are unquestioned. Nor is any question raised as to 

whether the child was in the legal custody of and resided with the wife for 

the required period. There is, therefore, no evidence of fraud. .. 

This latest Attorney General decision stresses the remedial and 

humanitarian purposes of section 101(b) (1) (E). Under the circumstances present in the instant case, the beneficiary qualifies as 

an adopted child. 

ORDER: It is ordered that the appeal be sustained and that both 

beneficiaries be found eligbile for third preference quota status. 

29.