Interim Decision #2692 

MATTER OF SENA 

In Visa Petition Proceedings 

A-21685633 

Decided by Board March 8, 1979 

(1) Under the provisions of Decree Law 261/75 of May 27, 1975, corrected June 21, 1975, 

which amended the Civil Code, divorce by Catholics in Portugal is allowed as of May 27, 

1975; prior thereto it was forbidden. Matter of Ferreira, 141. & N. Dec. 723 (BIA 1975), 

qualified. 

(2) In a case involving an immediate relative visa petition, the record will be remanded to 

the District Director for clarification of the petitioner's domicile, at the time of her 

divorce where the petitioner and her ex-husband were both citizens of Portugal, were 

divorced while living in Rhode Island, and where the petitioner later remarried in New 

Jersey, to determine whether or not New Jersey would recognize the petitioner's 

divorce. 

One BEHALF OF PETITIONER: Pro se 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

The United States citizen petitioner applied for immediate relative 

status for the beneficiary as his wife under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b). In a decision dated May 

24, 1978, the District Director denied the petition on the ground that the 

petitioner had previously been married and that this marriage had not 

been dissolved. The petitioner appeals from this decision. The record 

will be remanded. 

The petitioner is a 43-year-old native of Portugal and a naturalized 

citizen of the United States. The beneficiary is a 42-year-old native and 

citizen of Portugal, who married the petitioner on June 8, 1977, at 

Newark, New Jersey. 

The District Director based his denial of the petition on two grounds. 

He found that neither the petitioner nor his first wife had been present 

at the divorce hearing in Portugal on November 17, 1976, and that the 

State of New Jersey would not therefore recognize such a "mail order'" 

divorce. He also found that the parties were not able to divorce, as they 

had entered into a Catholic marriage in Portugal after August 1, 1940, 

and that Portuguese law forbids divorce in such cases. 

It is true that divorce in Portugal, by Catholics, was formerly forbi 

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Interim Decision #2692 

den by Portuguese law, as held by this Board in Matter of Ferreira, 14 I. 

& N. Dec. 723 (BIA 1974). Recent revisions in Portuguese law, however, have changed this situation. The Library of Congress has 

informed the Board that the Decree Law 261/75 of May 27, 1975, 

corrected June 21, 1975, amended the Civil Code to allow divorce by 

Catholics. According to the new law: 

The value and effectiveness of Catholic marriages continues to be acknowledged in 

accordance with the provisions of article 1587 of the Civil Code so that Catholics, as 

heretofore, may opt between the two forms of marriage [civil and religious]. Hereafter, 

simply, once the marriage has been celebrated through either civil or Catholic-religious 

ceremony, its effects shall be governed by the laws of the State [civil] only, regardless of 

the form of celebration chosen. . .. Catholic marriages may therefore be dissolved by 

civil tribunals on the same terms and for the same reasons that civil marriages may be 

dissolved. (Preliminary statement at page 539.) 1 

We therefore hold that Catholics in Portugal have been free to obtain 

divorces under this new provision of law, since it went into effect on 

May 27, 1975. The petitioner here was divorced on November 17, 1976, 

and thus comes under this provision. His divorce was consequently valid 

under Portuguese law_ 

On the second point of appeal, we agree with the District Director 

that New Jersey does not recognize "mail order" divorces. The situation 

here is not quite so simple, however. The divorce in question occurred 

when the petitioner was living in _Rhode Island. The issue therefore is 

whether or not Rhode Island would recognize the Portuguese divorce, 

and whether New Jersey would in turn consider it valid if Rhode Island 

does. 

But before this question can be resolved, it is necessary to establish 

what law was applicable when the divorce occurred. The divorce decree 

indicates that both parties were "resident in" Rhode Island at the time 

of the divorce action. It is not clear what this statement means. Since 

recognition of the divorce by Rhode Island may hinge on the domicile of 

the parties at the time of the divorce action, further evidence in this 

regard is necessary. The record will accordingly be remanded to the 

District Director so that further information concerning the parties' 

domicile at the time of the divorce may be provided. 

ORDER: The record is remanded to the District Director for further 

proceedings consistent with the foregoing opinion and the entry of a new 

decision. 

Boletin do Ministerio da Justice, No. 247, June, 1975. 

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