Interim Decision #2542 

MATTER OF NWANGWU 

In Visa Petition Proceedings 

A-20501275 , 

Decided by Board December 14, 1976 

(1) It appeared that beneficiary had previously been married in 1960 according to the 

native laws and customs of the East-Central State of Nigeria. Petitioner contended that 

that marriage had been dissolved automatically in 1966 when beneficiary's first wife 

married another while he was in England. 

(2) Under the law of the East-Central State of Nigeria, a customary law marriage may be 

dissolved judicially and extra-judically. An extra-judicial divorce requires the observance of certain ceremonial formalities in accordance with the current customary 

divorce law of the particular ethnic group or tribe. A mere voluntary separation of the 

parties or desertion does not effectively dissolve the marriage. 

(3) 'Where there was no showing that the minimum requirements for dissolution of 

marriage had been met, denial of the visa petition on grounds of lack of proof of 

terminatinn of beneficiary's Dior marriage waspmper and the appeal will he dismissed. 

ON BEHALF OF PETITIONER: Ben C. Shapero 

1200 1st National Building 

Detroit, Michigan 48226 

BY: Milhollan, Chairman; 'Wilson, Torrington, Maniatis, and Applernan, Board Members 

The lawful permanent resident petitioner applied for preference 

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

Immigration and Nationality Act. In a decision dated April 9, 1976, the 

District Director denied the petition on the ground that proof of the 

termination of the beneficiary's prior marriage was lacking. The petitioner appeals from that decision. The appeal will be dismissed 

The petitioner was born on December 7, 1937, in Nigeria and was 

admitted as a lawful permanent resident to the United States on October 22, 1969. The beneficiary was born on April 4, 1937, in Nigeria and 

entered the United States as a visitor on December 18, 1972. He and the 

petitioner were married in Detroit, Michigan on April 16, 1973. 

It appears that the beneficiary was previously married in Nigeria in 

1960 according to the native laws and custom of that country. It is the 

petitioner's contention that this customary marriage has been dissolved 

since the beneficiary's Nigerian wife remarried another in 1966, while 

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Interim Decision #2542 

the beneficiary was living in England. The assertion is that this "automatically" dissolved the customary marriage and, as evidence, the petitioner submits a sworn affidavit by the beneficiary's brother attesting to 

the same. In addition, the beneficiary submitted a letter to the District 

Director in March 1974, in which, among other things, he stated that 

Nigeria is essentially a polygamous country; that a man could marry 

one, two or three women, and that not infrequently a woman might 

refuse to live with her husband, and marry another man without going 

through the courts to obtain a divorce. In the letter he also stated that 

"desertion and remarriage of one party effectively dissolves the marriage." 

In a visa petition proceeding the burden of proof is on the petitioner. 

Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Under 8 C.F.R. 

204.2(e)(2) the petitioner must submit proof of the legal termination of 

the parties' previous marriages. Any pre-existing valid marriage is a 

bar to our recognition of the marriage on which the visa petition is 

based. The petitioner has failed to prove the legal termination of his 

previous customary marriage. 

In Matter of Akinsete, Interim Decision 2369 (BIA 1975), we recognized that In the Mid-Western State of Nigeria a divorce must be 

obtained from a competent customary court in order to dissolve a tribal 

marriage. The law of the East-Central State of Nigeria, in which the 

beneficiary's prior marriage took place, is different. We have the benefit 

of a Library of Congress report dated October 6, 1975, entitled "Divorce 

in the East-Central State of Nigeria Between Persons Married Under 

Customary Law," which we are attaching hereto as Appendix A. It 

appears that, in the East-Central State of Nigeria, a customary law 

marriage may be dissolved not only judicially but also extra-judicially. 

An extra-judicial divorce requires the observance of certain ceremonial 

formalities in accordance with the current customary divorce law of the 

particular ethnic group or tribe of the parties. A mere voluntary separation of the parties or desertion does not effectively dissolve the existing 

marital relationship. 

The only evidence submitted in support of the petitioner's claim that 

the beneficiary's first marriage was dissolved in 1966 is an affidavit of 

the petitioner's brother, which states that the first wife deserted the 

beneficiary, and married another man. The contents of that affidavit are 

at variance with statements previously submitted by the petitioner, and 

do not show the legal termination of the beneficiary's marriage under 

the laws of East-Central Nigeria. 

In view of the fact that there has been no showing of the minimum 

formalities required to dissolve a marital relationship in Nigeria, we 

must agree with the District Director's decision that the beneficiary's 

first marriage was not legally terminated prior to his present marriage 

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Interim Decision #2542 

to the petitioner. We find, accordingly, that the beneficiary's prior 

marriage is a valid pre-existing marriage preventing recognition for 

immigration purposes of the marriage between the petitioner and the 

beneficiary. The appeal will, therefore, be dismissed, 

ORDER: The appeal is dismissed. 

APPENDIX A 

DIVORCE IN THE EAST-CENTRAL STATE OF NIGERIA 

BETWEEN PERSONS MARRIED UNDER CUSTOMARY LAW 

Some formality is required to bring a Nigerian customary law marriage to an end.' These formalities may take place in or out of court: 

Unlike in English law dissolution of marriage under native law and custom could be 

either judicial or extra-judicia1. 2 

Non judicial divorce, however, is on the decline in Nigeria, even among 

people living in traditional societies: 

In the areas where non-judicial dissolution of marriage is permitted, divorce may also 

be obtained in . . . court. Indeed, it appears that more and more people are using these 

courts, rather than the more informal non-judicial means, in order to make their 

divorces "official" so as to be protected against any future claim that the marriage was 

never dissolved . 

The court system of the East-Central State of Nigeria was altered in 

1971 to place jurisdiction in cases of divorce "between persons married 

under customary law" in the Magistrates' Courts.' 

It is not always an easy task for a court having jurisdiction in the 

locality in question to determine issues of customary law. In Inyang v_ 

Ita the court made the following observation: 

A good deal of evidence was given by both sides on this question of native law and 

custom. This kind of so-called expert evidence must always be treated with very great 

caution. The evidence of these experts is invariably coloured each by his own personal 

interests. The only way in which such testimony can be safely treated is to refrain from 

attempting to estimate individual credibility and to concentrate on drawing conclusions 

from the general trend of the evidence.' 

In Okpanum v. Okpanum, a case contesting the validity of an alleged 

customary divorce, the court based its decision upon evidence of a 

formal meeting attended by representatives of both families of the 

' S. N. Chinwuba Obi, Modern Family Law in Southern Nigeria (1966) 368. 

2 Okpanum v. Okpanum, 2 ECSLR 561, at p. 564. 

3Alfred B. Kasunmu and Jeswald W. Salacuse, Nigerian Family Law (1966) 175. 

4E.C.S.N. Edict No. 23 of 1971, Section 17 (1)(h). 

9 Nigeria Law Reports 84. 

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Interim Decision #2542—Appendix 

parties to the marriage. 6There, the husband formally renounced or 

terminated the marriage before both families which had been called 

together for that purpose.' 

S. N. Chinwuba Obi, whose book on Nigerian family law is cited by 

the court in the Okpanum case, provides information on the details of 

the formalities required to bring an Ibo customary marriage to an end. 8 

In rejecting the idea that a woman is free to abandon her husband and 

marry another man without divorce formalities, Obi comments as follows: 

Contrary to popular opinion in certain quarters, customary marriage is not dissolved 

by the mere fact that one spouse has left, or been sent away by the other with the 

express intention of never again living together with him or her as husband and wife. 

Where this happens, there is no more than desertion or voluntary separation as the case 

may be: the parties remain husband and wife in the eyes of the law nonetheless. 9 

Commentators have expressed the difficulties surrounding proof of a 

non judicial divorce as follows: 

It is necessary to determine the acts necessary under the applicable customary law 

which will sever the marital bonds and the point at which the marriage is terminated. 

Then, too, it may be difficult to decide whether these acts were actually performed and 

what the intentions of the parties were at the time." 

For a foreign agency or tribunal to decide the issue of the validity of a 

divorce in these circumstances it would have to determine (1) the ethnic 

group or tribe of the parties, (2) the current customary divorce law of 

that group, and (3) proof of the facts alleged. These are the issues which 

the local Nigerian courts, on the other hand, are uniquely equipped to 

determine. For purposes of its use abroad, a judgment of a Nigerian 

court should be certified as a true copy by the court and, in turn, by the 

United States embassy or consulate as being the judgment of the court. 

Prepared by Neil R. McDonald 

Senior Legal Specialist 

Near Eastern and African Law Division 

Law Library, Library of Congress 

October 1975 

6 Okpanum v. Okpanum, supra, at p. 564. 

7 Okapnum v. Okapnum, supra, at p. 565. 

g Obi, supra, p. 368. 

Obi, supra, at p. 368. 

'° Kasunmu and Salacuse, supra, 172. 

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