When foreign nationals seek admission to the U.S. as spouses of U.S. citizens, permanent residents, or other persons with qualifying legal status, they are required to establish the validity of their marriage for immigration purposes. To do this, they usually submit a marriage certificate – a civil record obtained from the government of the place where the marriage took place. But, in some countries, many people get married in accordance with the practices of their religion or the customs of their ethnic tradition without ever officially registering the event with civil authorities. Such religious or traditional marriages may, nonetheless, be valid for U.S. immigration purposes, under certain conditions.
A religious or traditional marriage will be valid for U.S. immigration purposes if – among other conditions – it was recognized under the law of the place where it was formed at the time when it was formed. (Other notable conditions – which fall outside the scope of this article – include that the marriage was formed in the physical presence of both spouses, that neither spouse was underage or married to anyone else at the time when the marriage was formed, and that the spouses are not closely related by blood.)
This article describes the steps needed to determine whether a religious or traditional marriage ceremony had legal effect in the country where it was performed, and when, as a result, alternative forms of evidence (such as clerical records and personal affidavits) can be substituted for civil marriage records.
Although many countries continue to recognize religious or traditional marriage ceremonies, many others do not. To find out what any particular country’s law, policy, or practice is on this issue, we must look at both the U.S. State Department’s Reciprocity Tables and the country’s relevant marriage laws.
The Reciprocity Tables (published on the State Department's website) are a compilation of country data relevant to U.S. visa applicants. This data includes – among other things – information on the availability of marriage records in different countries.
For example: As of February 2015, it indicates that marriage certificates remain unavailable in Somalia. As a rule, if the Reciprocity Tables indicate that marriage records are available in the country where your marriage ceremony took place, you will be expected either to submit such records as primary evidence with your application for marriage-based admission to the U.S., or, at least, to provide an explanation for your inability to do so – possibly with a supporting letter from the country’s relevant authority. (Note: Not knowing the law is never a good enough explanation for such failure.) If, however, as in the case of Somalia, the country’s reciprocity page indicates that marriage records are unavailable, then secondary evidence including affidavits of marriage (sworn letters from family members and other persons attesting to the existence and circumstances of your marriage) should be submitted instead.
In addition, the Reciprocity Tables will sometimes (but not always) include specific information on the validity of religious or traditional marriages in different countries. For example: As of February 2015, the Tables indicate that, although religious ceremonies are recognized in India (and clerical records might be available), this is not the case in Chile (where religious ceremonies are, nonetheless, frequently performed). As a result, when a church in India issues a marriage record, this document may be accepted as sufficient evidence of the validity of a marriage for U.S. immigration purposes. But a marriage record issued by a church in Chile will not be accepted unless there is a good explanation why civil records cannot be submitted.
Other example: the Reciprocity Tables indicate that, although Ghana and Liberia both recognize traditional (or “customary”) marriages, Liberia requires that such marriages be registered with civil authorities, but Ghana does not. As a result, while civil records might be required as primary evidence of the validity of a traditional Liberian marriage, affidavits and other secondary evidence might be sufficient to prove the validity of a traditional Ghanaian marriage. (Ironically, secondary evidence may still be needed as a supplement in Liberian cases, due to widespread fraud in the issuance of marriage records.)
When the Reciprocity Tables do not state explicitly whether traditional or religious marriages are legal in a particular country, the next step is to consult the country’s marriage laws – an exercise that can be difficult and require the assistance of an attorney. For example: Côte d'Ivoire’s reciprocity page does not indicate whether, like its neighbors Ghana and Liberia, it recognizes traditional marriages. However, a look at the country’s marriage laws (the text of which may be difficult to find in the U.S.) should reveal that it does not recognize traditional marriages.
Furthermore, a careful reading of a country’s marriage laws could help anticipate certain subtle pitfalls. For example: The Ghanaian Constitution defines “customary law” as the law applicable to “particular communities in Ghana.” This language raises questions as to whether expatriates who get married in Ghana in accordance with the customs of their home tradition could establish the validity of their traditional marriage under Ghanaian law (since it is unclear that they would be considered members of “particular communities in Ghana”). Here again, the assistance of an attorney could be invaluable.
For countries like Somalia, where national marriage laws – being no longer enforceable or applicable due to the collapse of the state – were replaced “de facto” by local customary practices and Sharia or other religious law, the validity of customary or religious marriages will be determined on a case by case basis. (Any marriage certificate issued by a “de facto” local authority is unlikely to substitute for primary evidence, however – though it may be submitted as secondary evidence in addition to marriage affidavits.)
If you think your religious or traditional marriage ceremony had no legal effect in the country where it was performed, then your main remaining option for marriage-based admission to the U.S. would be to obtain a new marriage – this time making sure that you comply with local laws. However, especially if that option seems impractical, you should still consider hiring an immigration attorney to explore possible alternatives, based either on humanitarian arguments or new developments in U.S. law or policy.