My husband and I married each other in Africa. Under the law of the African country where we were married, it is lawful for a man to have more than one wife. Unbeknownst to me at the time we married, my husband was already lawfully married to another woman. I am a U.S. citizen and now live in Texas; my husband lives in Africa. May I obtain a divorce or annulment under Texas law?
Also, because Texas does not recognize the validity of multiple, simultaneous marriages, may I legally get married in Texas without a divorce or an annulment?
As an initial matter, you should not get married again until you have obtained a judicial determination that you currently are an unmarried person.
Next, assuming that your marriage in Africa to a man who was then married to another woman is valid under the law of the particular African country, it would first be necessary to ascertain whether Texas law would recognize your African marriage as lawful under Texas law. A strong legal argument can usually be made that a second jurisdiction (Texas) should recognize as lawful a marriage that was lawful under the laws of the first jurisdiction where it occurred (African country), even if the marriage would not have been lawful under the laws of the second jurisdiction (Texas). As you may have noted, this exact legal issue, albeit in a much different context, is currently the source of much litigation in many states of United States.
Although Texas does not allow or recognize multiple simultaneous marriages, it is not clear that Texas would not recognize as lawful such a marriage that was lawfully entered into in a foreign country. This is especially true if the provisions of a treaty that may have been entered into by United States and the particular African country would conflict with Texas law. In such a case, it is entirely possible that Texas law would be preempted and Texas would be required to recognize the marriage as valid.
If, on the other hand, the legal research supports an argument that Texas need not recognize as valid an African marriage that would not have been valid if performed in Texas, your attorney might be able to persuade a Texas court to enter a declaratory judgment stating that, under Texas law, you are an unmarried person. The U.S. Constitution would require that all U.S. states give “full faith and credit” to the Texas judgment, which would have the practical effect of confirming your status as an unmarried person in all states of the United States.
A related argument would be that, since a Texas declaratory judgment action would not seek to affect the validity of the African marriage or the rights of your husband – but rather, would request “only” a determination of the validity of the African marriage under Texas law – the action for declaration judgment could proceed without your husband being served with legal process. This argument, admittedly, is somewhat of a longshot; however, given the expense and difficulty of service of process in foreign countries, it might be worth trying.
Also, recall that Texas recognizes as valid “common law” marriages that are “entered into” in Texas.
This is a complicated matter that involves many issues, ranging from legal issues such as conflict of laws to policy issues of various governments. Unfortunately, there is no easy or clear-cut answer.
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Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.