Marital Record : Common obstacle in
bringing your Filipino Fiancée to United States.
Alexander Llanes Acain, Jr. Esq.
The general rule is that
K1 applications are subject to the same review standards as immigrant visa
applications. According to the U.S. Embassy in Manila, the main reasons for
visa refusal are: lacking documentation; need to review or verify evidence;
lack of petitionable relationship; misrepresentation of facts, medical and
criminal grounds and potential public charge.
But common basis for refusal is a prior marriage of the Filipino
beneficiary that has not been legally terminated. When confronted with this
legal dilemma, the usual advice of U.S. immigration lawyers is that your
Filipino beneficiary should secure a decree of annulment in the Philippine
Courts. This may be the best legal remedy but unlike in the United States
where divorce is recognized and the processing time for the divorce
proceeding is relatively shorter, it would be a lengthy process to obtain a
decree of Annulment in Philippine Courts. Besides, there is no guarantee
that the Petition will be granted.
But there is a less explored legal remedy which is also acceptable
by consular officers of the U.S. Embassy. This is the Petition for
Presumptive Death of the Filipino Spouse. Since there is no divorce in the
Philippines, a consular officer will only accept a death certificate or a
court ruling of annulment or of presumptive death as evidence that a
Filipino marriage has been terminated.
Art. 41. of the Family Code says that “A marriage contracted by any person
during subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded
belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient. Simply put, your fiancée may also validly remarry
provided that she has obtained a declaration or Order of Presumptive Death
of her spouse from the Court.
The Petition may prosper if the absent spouse has not been heard of or his
whereabouts unknown for a period of four consecutive years and that the
petitioning spouse has a well-founded belief that he was already dead.
Absence of two years is already sufficient if the absent spouse was missing
due to airplane crash, a vessel lost during a sea voyage, missing in action in
case of members of the armed forces or the absent spouse disappeared while
in danger of death.
Now, for purposes of contracting the subsequent marriage, the spouse present
must institute a summary proceeding in Court for the declaration of
presumptive death of the absentee. But this is without prejudice to the
effect of reappearance of the absent spouse. You can take advantage of this
remedy especially when you are racing against time because the processing
time is relatively shorter than annulment proceedings and the success
rate is high compared to Annulment Petitions.
Next time you face a legal obstacle in bringing your Filipino Fiancée to the
United States, you already have other remedies to consider.
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