WisBar News: Court Says Hmong Couple Had Putative Marriage, for Purposes of Divorce:

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  • Court Says Hmong Couple Had Putative Marriage, for Purposes of Divorce

    Joe Forward

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    Family Law

    Oct. 24, 2017 – A man challenged a divorce decree, as well as property and maintenance awards, arguing that he and the petitioner were never validly married despite evidence that a Hmong marriage took place at a Thai refugee camp in 1980.

    Recently, a state appeals court applied the “putative marriage doctrine” to recognize the marriage in Wisconsin, affirming the divorce, property, and maintenance judgments.

    In Xiong v. Vang, 2016AP1281 (Oct. 24, 2017), a three-judge panel did not hold the marriage was valid, since it occurred in Thailand between two people from Laos, but said it “should be accorded legal recognition as a putative marriage” in Wisconsin.

    Evidence of a Wedding

    In 2014, Seng Xiong (wife) filed for divorce from Lang Vang, producing photos of ceremonies and testimony from several of Xiong’s family members who said the Laotian couple entered into the marriage at the Ban Vinai refugee camp after family negotiations.

    For instance, Xiong’s uncle testified that Xiong was indirectly forced to marry Vang after Vang paid Xiong’s family, and he performed the marriage ceremony in accordance with Hmong rituals. A separate “string ceremony” was performed three days later.  

    Xiong’s older brother and others confirmed the marriage and said cohabitation is not accepted in Hmong life and thus a “cohabitation ceremony” would not be celebrated, suggesting the ceremony photos of Xiong and Lang could only be marriage photos.

    Vang conceded that a ceremony took place in 1980, but argued it was to celebrate their cohabitation. He said the two never married and never intended to be married. The couple, however, lived together until 2008 and had four children together.

    Xiong said she learned Vang had a girlfriend in 2005 but hoped the marriage could be salvaged, which is why she did not file for divorce until 2014.

    Vang, who later married another woman, said the couple never registered as married in Thailand or the U.S. He acknowledged signing immigration papers, joint tax returns, and property transfers as married, but said he was unsure how else to prepare them.

    Two expert witnesses testified, supporting Vang’s position. One practiced family law in Thailand and said the two could not be legally married in Thailand while residing at the refugee camp because they were considered illegal immigrants under Thai law.

    Xiong argued that she and Vang were domiciliaries of Laos and the Hmong brought their legal system, including laws on marriage, to the refugee camp in Thailand.

    Another witness, a Ph.D. student studying Thai culture at U.W.-Madison, said photos depicting the ceremony could not be a marriage ceremony based on the clothing they were wearing. He also said that the Hmong do not recognize forced marriages.

    The circuit court entered a divorce and awarded property and $2,708 per month in maintenance to Xiong, for an indefinite period, noting ambiguities but concluding that the parties had a putative marriage that should be recognized in Wisconsin.

    Appeals Court Affirms Putative Marriage

    In Xiong v. Vang, 2016AP1281 (Oct. 24, 2017), a three-judge appeals court panel affirmed, rejecting Vang’s argument that any alleged marriage would have been invalid under Thai law, based on immigration status, so it cannot be recognized in Wisconsin.

    The panel noted that the validity of marriages is controlled “by the law of the place where the marriage was contracted,” in this case, the laws of Thailand.

    Thus, the panel rejected Xiong’s claim that the purported marriage was still valid, even if Thailand did not recognize refugee camp marriages between Laotian immigrants.

    “Xiong cites no legal authority in support of the proposition that the law of the parties’ country of domicile should determine the validity of their marriage, rather than the law of the country where the marriage occurred,” wrote Judge Lisa Stark for the panel.

    But the panel agreed that the marriage should be recognized anyway. “[U]nder the circumstances of this case, Vang and Xiong’s relationship qualifies as a putative marriage and, as such, should be accorded recognition under Wisconsin law.”

    The panel concluded that the circumstances met the requirements for a putative marriage, first because it was “solemnized in proper form.” Vang did not present enough evidence to rebut Xiong’s evidence that the ceremony was a marriage ceremony.

    The panel also noted that the marriage was “celebrated in good faith by one or both parties,” the second requirement, noting evidence that both parties “believed they were married” and ventured forth by signing legal documents as married.

    Vang argued that applying a putative marriage in divorce actions will validate common law marriages in Wisconsin, but the panel was not convinced.

    “Unlike common-law marriages, putative marriages require that the parties solemnized their marriage in proper form, and that at least one of the parties believed they were validly married,” Judge Stark wrote.

    “Because these distinct requirements must be fulfilled in order for a putative marriage to be recognized under Wisconsin law, applying the putative marriage doctrine in divorce cases will not, as Vang claims, validate common-law marriages in this state.”

    The panel also cautioned that the particulars of this case should not be imputed to other Hmong marriages.

    “[O]ur decision in this case should not be read to indicate that all marriages performed according to Hmong cultural traditions, or the traditions of other cultures, are per se valid in Wisconsin,” Judge Stark wrote. “Rather, each purported marriage must be analyzed on its own facts to determine whether it qualifies as a putative marriage. …”