MATTER OF 5— 

In VISA PETITION Proceedings 

A-11760497 

Decided by Board Hay :?5, 1961 

Marriage—Not valid where contracted in New Hampshire before Massachusetts divorce decree became final. 

Beneficiary's marriage to petitioner in New Hampshire on December 28, 1060, 

which occurred nine days after beneficiary had obtained decree nisi in Massachusetts divorce proceedings against first wife, is ruled void. Under the 

law of Massachusetts, a decree nisi does not become final until sim months 

have elapsed from the date of its entry. 

BEFORE THE BOARD 

DISCUSSION: The case comes forward on appeal from the' order 

of the District Director, Boston District, dated February 16, 1961, 

denying the visa petition for the reason that no valid marriage exists 

between the petitioner and the beneficiary, her alleged husband. 

The petitioner, a native of Italy, naturalized citizen of the United 

States, 53 years old, female, seeks nonquota status on behalf o the 

beneficiary, a native and citizen of Italy, 54 years old, male, her 

alleged husband. The parties underwent a marriage ceremony on 

December 28, 1960, at. Salem, New Hampshire. 

Both petitioner and the beneficiary were previously married one 

time. The petitioner's first marriage was terminated by the death 

of her husband in 1943. 

As evidence of the termination of the beneficiary's marriage, 

there has been submitted a copy of a decree nisi entered in the Probate Court at Boston, Suffolk County, Massachusetts, in favor of 

the beneficiary on December 19. 1960. The decree recites that it 

shall become absolute upon and after the expiration of six months 

from the date of entry of the decree. Inasmuch as the present 

marriage in New Hampshire was performed on December 28, 1960, 

only nine days after the date of the decree nisi. the issue presented is whether the petitioner has established a valid marriage 

upon which to predicate her petition for nonquota status on behalf 

of the beneficiary. 

Under the law of Massachusetts, decrees of divorce in the first 

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instance are decrees nisi and become absolute after the expiration of 

six months from entry thereof, unless the court. within said period, 

for sufficient cause, upon application of any party interested, otherwise orders. 1The entry of the decree nisi, does not terminate the 

marriage; there must be a lapse of six months before there is a 

legal termination of the marriage. 2 

Here the parties had married in the State of New Hampshire 

within the six-month period. The case of Smith. v. Smith, 99 N.H. 

376, 11 A.2d 531 (S. Ct., N.H., 1955), is almost factually identical 

with the instant case. There. the defendant's husband had been 

granted a decree nisi on April 14. 1947, which did not. become absolute until after six months from that. date. However, the wife 

nonetheless entered into a marriage with the plaintiff on June 1, 

1947, in New Hampshire. The parties lived together as man and 

wife in Massachusetts until 1952. The court found that the parties 

both knew that the Massachusetts divorce decree was not final when 

they got married in New Hampshire but they entered into the ceremony in good faith and in the belief that the marriage was lawful 

in New Hampshire. The court applied the law of the state of domicile, Massachusetts, and found that since the defendant was a married woman at the time of the ceremony in New Hampshire, the 

marriage was absolutely void under Massachusetts law. 8However, 

the court. interpreted Massachusetts General Laws, Chapter 207, section 6,4to find that the trial court was warranted in concluding 

that the parties had entered into the New Hampshire ceremony in 

3Massachusetts General Laws, Chapter 208, section 21. 

=Rollins v. Gould, 244 Mass. 270, 138 N.E. 815; Diggs v. Diggs, 291 Mass. 

399, 196 N.E. 858; Sheffer v. Sheffer, 316 Mass. 575, 56 N.E.2d 13; Vernier, 

American Family Laws (1932), p. 156. 

3Chapter 207, section 10, General Laws, provides: "If any person residing 

and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage maler the laws of this commonwealth and 

goes into another jurisdiction and there contracts a marriage prohibited and 

declared void by the laws of this commonwealth, such marriage shall be null 

and void for all purposes in this commonwealth with the same effect as though 

such prohibited marriage had been entered into in this commonwealth." 

4Chapter 207, section 6, provides: "If a person, during the lifetime of a 

husband and wife with whom the marriage Is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live 

together thereafter as husband and wife, and ouch rubraquent marriage eon 

tract was entered into by one of the parties in good faith, in full belief that 

the former husband or wife was dead, that the former marriage had been 

annulled by a divorce, or without knowledge of such former marriage, they 

shall, after the impediment to their marriage has been removed by the death 

or divorce of the other party to the former marriage, if they continue to live 

together as husband and wife in good faith on the part of one of them, be 

held to have been legally married from and after the removal of such impediment e * *." 

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good faith in the belief that the marriage was lawful in New 

Hampshire. 

The record shows that the petitioner was questioned under oath 

on January 31, 1961, by a Service officer and although she admitted 

the immigration people and others had told her there could be a 

question as to whether a marriage in another state might - be regarded 

as invalid if the marriage occurred within the six-month period 

before the Massachusetts divorce became final, nevertheless her 

lawyer advised her to go ahead and get married and since she loved 

the beneficiary she proceeded to marry him in New Hampshire. 

Under the holding in Smith, v. Smith, supra, this 'might create an 

issue of fact as to good faith under section 6, Chapter 207, Massachusotta General Laws,' as to the subsequent marriage. However, 

in the instant case, the Massachusetts decree nisi will not becoma 

final until June 19, 1961. Therefore, the impediment of a prior 

lawful marriage still exists and the parties herein cannot now be 

regarded as lawfully married. At the end of the six-month period 

the parties may adjust their status by a marriage, which would be 

the simplest course, or by reliance, on Massachusetts General Laws, 

Chapter 207, section 6. At the present time there is no other course 

but to 'dismiss the appeal. 

ORDER: It is ordered that the appeal be and the same is hereby 

di sm issed. 

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