The Maryland Court of Appeals recently affirmed a finding that a marriage ceremony performed in the Democratic Republic of Congo (formerly Zaire) was valid even though the husband was not physically present at the ceremony, but participated in the ceremony by telephone from another country.
In 2010, the wife filed suit for divorce in Maryland. On appeal, the husband contested the divorce on the premise that he and the wife were never married legally. Following affirmation by the Maryland Court of Special Appeals, the husband petitioned for writ of certiorari to the Maryland Court of Appeals to answer the following question:
Does Maryland recognize foreign wedding ceremonies where the groom participated only by telephone under the principles of comity?
Initially, the Court of Appeals found that to establish the presumption that a foreign marriage was legally valid, affirmative proof of the statutory or common law of the foreign jurisdiction is not necessarily required. The Court of Appeals found that there was ample evidence to establish that the parties were legally married. Following the ceremony in the Congo, the parties also had a ceremony at the former Embassy of Zaire in Washington, D.C., as well as a religious ceremony in Virginia. The parties continued to cohabit as husband and wife for 15 years, they had three children together, and they purchased several homes in Maryland, at least one of which was titled as tenants by the entireties – a type of title reserved specifically for married couples. The Court also found that there was evidence to establish that the husband referred to the wife as his “wife” or “spouse” on his health and life insurance policies through his employer, on an application for her immigration legal residency papers, and for the purposes of filing state and federal tax returns.
After holding that a legally valid marriage was established, the Court of Appeals went on to address whether that marriage should be recognized in Maryland under the common law doctrine of comity. Comity involves the recognition of orders and legal contracts entered in other jurisdictions, both foreign and domestic. In the context of a marriage, there are generally two exceptions to the general rule of comity:
(1) the type or circumstances of the marriage must not be prohibited expressly by the Maryland Legislature; and
(2) the marriage cannot be repugnant to Maryland public policy.
The Court of Appeals only addressed the latter exception in this case.
In considering whether a marriage entered into over the telephone is repugnant to Maryland public policy, the Court recognized that Maryland liberally recognizes marriages formed validly in foreign jurisdictions. Second, the bar for meeting ‘repugnancy’ has been set intentionally very high and the question of repugnancy has been referred to as implicating a lack of “good morals.” Lastly, the Court found that it had previously recognized valid foreign marriages under the comity doctrine that would have been invalid if attempted to be formed in Maryland, including common law marriages and a marriage formed between an uncle and a niece (which would have been a misdemeanor if formed in Maryland).
In conclusion, the Court of Appeals found that the circumstances of the telephone marriage in the Congo did not exceed the level of dissonance necessary to be considered repugnant to Maryland public policy.
Interestingly, the Court declined to address whether a marriage entered into in the State of Maryland whereby one party was not physically present but appeared by telephone would be considered valid in Maryland. Thus, the validity of attempted telephone marriages formed in Maryland must await another day in Court!