Can My Fiancée and I Marry If We Are Both Still Married?
Recently I received a comment/question which was very, very interesting. I decided to answer it here on the “Main Blog” because I think there are so many issues and answers here that many more folks than the original commenter are going to be interested.
It came (allegedly) from a reader named milang. First of all, Milang, I want to thank you for sending this in. I appreciate it.
And thanks for the kind words too, although they are never necessary … I don’t do this work for anyone’s approval, I do it for two reasons:
- My own satisfaction in learning new things.
- The advertising revenue they generate. ( I never started this site thinking of making money, but find a need and fill it, income then comes)
I’m always surprised when other folks with blogs tell me they don’t know what to write about. My readers keep me more busy than I can cope with and this is a tiny, tiny forum compared to the “big boys” in this narrow niche. Thanks for all your comments, critique, suggestions and wishes, I surely couldn’t do it without you guys.
But, as with everything in life, nothing is perfect, and I am going to have to, as usual, make a lot of guesses as I answer this, because I am not always sure of the citizenship of the people involved and the country they might be talking about when they use the pronouns “here” and “there”.
(It would be a big help, believe me, if commenters would be clear about their citizenship and what county they are talking about. I get comments from all over the world and it would certainly help to know. Thanks in advance)
So rather than get into a long back and forth exchange with milang trying to clarify meanings, I’m just going to make some best-guess assumptions here, and if I get it wrong, I’m sure someone will let me know. This is already going to be along article. Please follow the links I am providing to get the full explanations .. I don’t want this post to be 5 or 6 thousand words. I looked up the links for a reason, if you are interested in this issue, you need to follow them.
And of course, remember my standard disclaimer. I am not an attorney and this is not intended as legal advice. It is my personal opinion only, and when you have a legal issue, trust me, you need an attorney. ‘nuf ced.
Here’s the original comment, in blue, “taken apart “ so I can address individual issues … otherwise, exactly as it was submitted, and my assumptions and answers
admired all your answers;I can relate all the situations in myself,because I almost have the same problem ,but in a different situation.
Yep, this is certainly a different situation from most. What I think I see here are two Philippine citizens,milang and her Filipino boyfriend. The primary issue they have is, they are BOTH already married to someone else, and they want to know how they BOTH can get “unmarried’ and then legally marry. Correct so far?
i have been searching for my missing husband for almost 24 years,and cant find him anymore. he is an. Australian citizen.
From this we can deduce that milang is in the position many Filipinas find themselves. They married a foreigner and the foreigner abandoned them, dropped them like a dirty tissue, and left them bound for life under Philippine law. (What the heck is wrong with so many of my fellow foreigners? Why wouldn’t you treat you wife with honor and integrity and if you don’t want to still be married, have the decency to divorce her? What is she, some stray dog you picked up and then don’t want to feed any more? Gosh, I don’t know. sad.
Anyway, in the matter of getting milang free to marry, there are two obvious courses of action.
First of all, if the current Australian husband can be found, she can request that he divorce her under Australian law. It’s not an impossible task, and her long missing husband is “legally encumbered” by this marriage as well, so it is not as if there is no benefit to him cleaning up his legal status as well. It’s cheap and simple for him, and if the divorce is granted, milang can then take the divorce decree and file a case within the Philippine courts system for Judicial Recognition of a Foreign Divorce Decree. Once that is granted by the Philippine courts, she, herself, should be free to marry
The second, alternative strategy milang might pursue is to attempt to get her exist husband declared dead.
The law in the Philippines on this issue is not extremely difficult, as legal proceedings go, Presumptive death of a spouse for subsequent marriage and again, it will legally end her existing marriage and make her “legally capable” of marriage in almost any country, including the Philippines.
OK, either of those two strategies will solve part one of the problem, milang’s capacity to marry
I have the opportunity to come to Australia as a visitor because of my daughter who is an Australian a citizen.
OKI, not too sure why this is thrown in here. My suggestion to milang is, take care of your legal status here in the Philippines, before you emigrate. Some of these cases can be filed and handled from overseas, but it certainly will not get any easier if you move overseas first, rather than cleaning up the legal mess now. IMO, anyway.
One other confusion factor for me is, we seem to be talking about Australia and the Philippines, but the comment came in from New Zealand … wonder what that is all about?
Oh well, on to the next issue.
I met a Filipino guy who is willing to marry me and sponsor me in this country.he is already a permanent resident here. and been separated to his wife for years.but not legally.
OK, sounds good. An Australian Permanent Resident may indeed sponsor a prospective spouse for entry to Australia. The problem facing you two now is the fact that a primary requirement for the sponsoring permanent resident is that s/he must be free to marry, with no impediment to the proposed marriage.
Although he is an Australian resident now, he is still a Philippine citizen. Therefore, the Philippine Family Code applies to him, no matter what country he happens to reside in. he is not legally free to marry, because he is already married.
I know that if he were a US Permanent Resident and attempted to sponsor you for a Fiancée’ visa, one of t
he very first things the US would do is “vet” him with the Philippine government. His existing marriage would show up on the very first check of the Philippine NSO and that would be the end of that. Separation, either informal or legally in the Philippines does NOT end a marriage. He can not get rid of his existing marriage/wife simply by ignoring it
I don’t know the exact procedure Australia uses, but I’d be willing to bet it is the same … or very similar. He isn’t eligible to sponsor you or marry you. Period.
So what can he do? Normally, he would be ‘stuck with the same legal remedy most Filipinos are ‘stuck’ with, because There is No Divorce in the Philippines. He would have to attempt to file (and prove) a case for legal annulment in the proper Philippine court.
And again, were his existing Philippine marriage “normal”, he likely has no grounds for annulment
Fortunately, his unique situation seem to give him grounds to file for a declaration of nullity of marriage, on the grounds that his existing marriage is “null ab initio” … void from the beginning, because his wife was already married.
The grounds for declaring nullity appear to be there, but nothing will happen automatically. He must file a case in the appropriate Philippine court.
The main reason why he separate his wife because he discovered that the woman has two marriages, held in the Philippines. The proof is shown when he got a document called CENOMAR in the NSO and was found out that the wife has engaged in two marriages after seven years.
His exist marriage will not “go away” by itself. he has apparently ignored his legal problem all these years, but now, as we say, “The Chickens Have Come Home to Roost”.
What action could be made in order to pursue my marriage with him?
As I have explained above, you both must make yourselves legally able to marry. Legally, I see no way around this.
We are planning to file my permanent residency under partnership. Can we marry here even without doing a legal action in our country?
Again, legally there is no way. Filing for a visa would most likely just be a waste of money, as neither one of you has the legal capacity to marry.
You might also run into the issue of Immigration Fraud should you try to deceive the government of Australia regarding either his or your legal capacity to marry.
Don’t let anyone advise you to break the law (of any country), just because it seems easier (and maybe they won’t find out). It’s a dangerous thing to do.
Sorry I couldn’t offer you easier solutions, but as many have heard me say in the past, Dura lex sed lex (literally, "the law is harsh, but it is the law". Godspeed.