IMMIGRATION CORNER: Mythical marriage laws · IMMIGRATION CORNER: Mythical marriage laws ... from friends, relatives or barangay captains. ... who obtained the court decree was in

IMMIGRATION CORNER: Mythical marriage laws

Written by MICHAEL J. GURFINKEL, ESQ.Sunday, 08 April 2012 19:16

Marriages are usually governed by the laws of the place of celebration.

In the Philippines, the Family Code deals with the validity, invalidity, and termination of localmarriages.

Although these laws are “on the books,” some people “invent” their own marriage laws, basedon gossip, rumors, hearsay, or statements from friends, relatives or barangay captains.

However, this can be dangerous, as the Embassy follows the official laws on marriage in theFamily Code, not the “laws” that you create or invent.

Here are some typical rationalizations people offer, as to why their marriage is valid or invalid,despite the Family Code:

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• My father-in-law “forced” me to marry his daughter.

Therefore, the marriage is not valid.

While in some cases a marriage can be annulled due to fraud, duress, or mistake, the “forced”party should have taken immediate legal steps to annul the marriage.

Any person who goes on to live “happily ever after” with his or her spouse for many years, havechildren, celebrate anniversaries, etc., cannot claim later that he or she was “forced.”

It is difficult to reconcile a lengthy marriage with an alleged lack of consent based on force orduress.

• I haven’t seen my spouse in several years, so I am automatically “single,” and free to remarry.

While there is a law in the Family Code concerning “presumptive death,” it is not something thathappens automatically.

You still have to go to court, and obtain a judgment declaring the marriage terminated becausethe spouse may be presumed dead, based on his absence, unknown whereabouts (despitegood faith search), and total lack of communication and contact.

And even a “presumptive death” court decree is no guarantee.

I know several cases where people used this presumptive death basis and even obtain a courtdecree.

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However, the Embassy investigated, and found out that the “dearly departed” spouse was verymuch alive, and the spouse who obtained the court decree was in regular contact with that“absent” spouse.

If your spouse is alive, your “presumptive death” termination of marriage will not work or beaccepted by the Embassy.

• My former spouse has already remarried and has another family.

Therefore, I can remarry now.

Unless you or your spouse obtained a court decree terminating your marriage(annulment/divorce), you are not free to remarry.

In fact, if no court-ordered termination of your marriage was obtained, your spouse iscommitting bigamy.

That doesn’t entitle you to also commit bigamy.

When your former spouse married a second time, he or she may not have disclosed to theLocal Civil Registrar (LCR) that he or she had an existing marriage, and so was able to obtain amarriage license.

That doesn't make that second marriage legal, nor would it terminate your existing marriage.

• I obtained a church annulment, so I am free to remarry.

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While a church annulment may be acceptable for religious purposes, you need a courtannulment to legally terminate your marriage for U.S. immigration purposes.

A church annulment would not be recognized for immigration purposes.

Therefore, if you had only a church annulment of your first marriage, and then married a U.S.citizen, the marriage to the citizen may not be recognized for U.S. immigration purposes.

• I was promised that the marriage contract would not be recorded.

Therefore, even though it was recorded, I should still be considered “unmarried.”

Many people believe that they can obtain a marriage license, go through a ceremony, say “I do,”but somehow remain “single,” because a well-connected relative or friend promised that themarriage contract would not be recorded.

However, by law, if you satisfied the legal requirements of the marriage (marriage license,ceremony, solemnizing officer with authority to perform weddings, etc.), then you would beconsidered legally married, notwithstanding the relative or friend’s “promise” not to record themarriage contract.

Furthermore, even if a marriage contract is not recorded, it does not affect the marriage’svalidity and you could still be considered legally married.

The above are only a few of the excuses or rationalizations that people give as to why theybelieve that they are single despite a marriage, or that their marriage has been properlyterminated.

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Relying on myths and misconceptions could have devastating effects.

For example, if you were petitioned by an immigrant parent as “single” but you were actuallymarried, your petition is void.

Reliance on the fact that the marriage contract was not supposed to be recorded does not erasethe fact that you are married.

If you are married to your first spouse, and then marry a second spouse (who happens to be aU.S. citizen), but you have not properly terminated your first marriage, the citizen will not beable to petition you, as you are not legally married to the citizen.

It doesn't matter that your first spouse may have already married someone else.

That is why it is important that you seek the advice of a reputable attorney, who can analyzeyour situation and guide you according to laws that are “on the books,” as opposed to mythicallaws, made up by friends, relatives, gossip, rumors, or misconceptions.

***

Michael J. Gurfinkel is licensed, and an active member of the State Bar of California andNew York.

All immigration services are provided by, or under the supervision of, an active memberof the State Bar of California.

Each case is different.

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The information contained herein (including testimonials, “Success Stories,”endorsements and re-enactments) is of a general nature, and is not intended to apply toany particular case, and does not constitute a prediction, warranty, guarantee or legaladvice regarding the outcome of your legal matter.

No attorney-client relationship is, or shall be, established with any reader.

WEBSITE: www.gurfinkel.com

Call toll-free to schedule a consultation for anywhere in the U.S.: 1-866-487-3465 (866) - GURFINKEL

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LOS ANGELES • SAN FRANCISCO • NEW YORK • PHILIPPINES

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IMMIGRATION CORNER: Mythical marriage laws · IMMIGRATION CORNER: Mythical marriage laws ... from friends, relatives or barangay captains. ... who obtained the court decree was in