Interim Decision #2295 

MATTER OF FERREIRA. 

In Visa Petition Proceedings 

A-19411014 

Decided by Board June 12, 1974 

Since under the law of Portugal, judicial separation of natural persons and of 

property does not dissolve the marriage bonds (Article 1774, Civil Code of 

1966), the Portuguese court decree of separation of persons and property 

presented by petitioner in support of his visa petition does not constitute proof 

of the termination of his first marriage in Portugal in 1961. (Neither is the 

decree recognized in the State of New York, the place of celebration of the 

subsequent marriage, as sufficient to terminate petitioner's first marriage.) 

Hence, petitioner's marriage to the beneficiary in New York in 1970 is void 

and cannot serve to confer preference classification on the beneficiary under 

section 203(aX2) of the Immigration and Nationality Act, as amended, as 

petitioner's spouse. 

ON R FIT A tr tIF PETTTIONER: Allan Ross. Esquire 

60 Broad Hollow Road 

Melville, New York 11746 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his spouse under section 203(a)(2) of 

the Immigration and Nationality Act. The petition was approved 

by the District Director on October 15, 1970. However, on May 3, 

1971, the District Director notified the petitioner of his intent to 

revoke the approval of the visa petition on the ground that a prior 

marriage of the petitioner had never been legally terminated. 

Subsequent correspondence by counsel failed to overcome the 

ground for revocation. In a decision dated August 5, 1971, the 

District Director revoked the visa petition. The petitioner has 

appealed from that decision. The appeal will be dismissed. 

The petitioner and the beneficiary, both natives of Portugal, 

were married in Hauppauge, New York on April 28, 1970. A 

petition for a spouse must be accompanied by proof of the legal 

termination of all previous marriages of both husband and wife. 8 

CFR 204.2(cX2). The petitioner presented a decree of separation of 

persons and property rendered by a court in Portugal on January 

17, 1970. The District Director found that this decree did not 

terminate the petitioner's prior marriage. 

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We have consulted the Hispanic Law Division of the Library of 

Congress regarding Portuguese law. Article 1789 of the Civil Code 

of Portugal (promulgated in 1966) states that a marriage may be 

dissolved by the death of one of the spouses or by divorce. Article 

1790 provides that neither Catholic marriages performed after 

August 1, 1940, nor civil marriages in which the parties have 

contracted Catholic marriages after that date, may be dissolved by 

divorce. Article 1774 states that judicial separation of natural 

persons and of property does not dissolve the marriage bonds. 

The petitioner entered into a Catholic marriage in Portugal in 

1961. The Portuguese decree of separation of persons and property 

did not terminate the petitioner's first marriage. Counsel has 

conceded that this is the Portuguese law. Nevertheless, he argues 

that New York, the place where the present marriage was celebrated, would recognize the Portuguese decree as sufficient to 

terminate the prior marriage. 

We are not dealing with a- statutory prohibition against the 

remarriage of divorced persons, to which New York might decline 

to give extraterritorial effect if it violated New York policy. We are 

faced here with a decree that did not dissolve the marriage bonds_ 

A New York court has stated that: 

If a divorce decree, whether designated interlocutory or otherwise, does not 

of itself immediately terminate the marriage affected thereby, any attempted 

subsequent marriage by a party thereto, prior to said decree becoming or 

being made final, is void and bigamous; and the courts have unanimously so 

declared, irrespective of the place of celebration thereof.... Marzano v. 

Marzano, 154 N.Y.S2d 507, 509 (Sup. Ct. 1956). 

In Kurras v. Kurras, 1 N.Y.S.2d 867, 253 App. Div. 896 (1938), the 

court held that an Austrian separation from bed and board was 

not an absolute divorce in Austria, and that therefore the defendant's subsequent New York marriage was void ab initio. 

We conclude that the Portuguese decree of separation was not 

sufficient to terminate the petitioner's prior marriage under either 

Portuguese or New York law. Nor is there any merit to counsel's 

contention that the issuance of a. marriage license by the Town 

Clerk of Smithtown, New York establishes the legal termination of 

the petitioner's prior marriage. 

Since the petitioner still has a wife in Portugal, we have no 

choice but to hold that his present marriage to the beneficiary is 

void. Therefore, he cannot confer preference status on the beneficiary as his spouse under section 203(a)(2) of the Act. 

The decision of the District Director was correct. Consequently, 

the appeal will be dismissed. It appears from the record that 

counsel is exploring the possibility of instituting a divorce proceeding in the petitioner's behalf in the States of New York. If the 

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petitioner is able to obtain a valid divorce from his first wife and 

remarry the beneficiary, he may submit a new petition in her 

behalf. 

ORDER: The appeal is dismissed. 

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