Marriage, Nationality and Divorce — Part 2

Original Article on Marriage, Nationality and Divorce … Marriage, Nationality and Divorce

Like so many other endeavors in this crazy online/offline world of mine, life is what happens when you are busy making other plans.

I wanted to already be finished with my articles on comparison of the Philippines with other potential overseas living/overseas retirement destinations.  But a couple days ago I caught a mild case of the flu and spent a couple days pretty much doing nada online.  And then Tropical Storm Egay blew through and apparently drowned part of SmartBro’s internet network, because although I never once lost connectivity,not a single useful bit of data went in or out of my connection for about 16 hours.   (This is a common situation you are going to have to deal with when you are across the pacific Ocean 7,000 miles from your web server and most of your readers).

A little editorial warning/comment:  You folks do realize, do you not, that I can do just a little bit of very non-technical digging and find out, sometimes to within a few city blocks, of where each and every message that comes here originated, do you not?  Every website owner can.  And any law enforcement agency can find out the name, address and billing information of anyone who sends an email.  In the US, since the “Ame4ricna patriot Act”, they don’t even need a warrant … an FBI form letter gets faxed to the ISP who you connect to the Internet with, and “Bob’s your uncle”.  Same thing holds true if you use a computer in say a Public Library … they have to turn your searches and web surfing history over upon demand, no warrant needed.  So if you want to discuss things like “dodgy immigration status” and such, I’d suggest you don’t do it online … the Internet in general is a very, very public place.  Fair Warning.”

Anyway, without further ado, I came across two comments today which drew my attention and I decided I’d take the time to answer both of them right here in the main blog rather than let the answers be buried in the comments queue.

They drew my attention right away because they were both left in response to the same article, and because they came in from a user with the same name.

Where It All Winds Up

First thing that happened was my ‘spam’ or ‘BS’ detector went on.  But I checked and they do indeed seem to be two different people from opposite sides of the globe.  And, although their questions are quite different, they really are much the same, and they have all been answered before.  Maybe several times.

Problem is, people can see and read the answers here, but they don’t really like the answers they see … so apparently, they figure if they ask the same question over again with different names and a different slant, perhaps the outcome will be different.  I believe it was Einstein who is credited with the phrase, “the definition of insanity is repeating the same actions over and over and expecting different results.”

But being human, I suppose we all have to try.

The first comment, with my responses in blue.  And please. Alfred, and all others who read this, consider this.  What I am going to say is not going to sound very complementary or supportive to Alfred … and the countless others who have gotten themselves into marriage and immigration “pickles” like this.  But I do not feel I will do “Alfred” a service if I fill my response with all sorts of platitudes and good will, beating around the bush and making sip sip and other meaningless niceties which are the “Filipino way’ all to often.  A spade is a spade, and that’s what I call it.  It’s not personal, but it’s the best advice I know how to give.

Submitted on 2011/06/23 at 12:20 am From a reader who goes by Alfred

Hi Phil!i was googling for articles and forums, taking chances that i might be able to find a case similar to mine. Fortunately, I landed at this page of which i think i could take refuge and hoping to receive some handful advice on how am i going to solve my problem.

Anyway, my story is a bit long and complicated, so i will just going to give you a synopsis of it(I’ll try..).

Here is the most important thing I can tell you, Alfred’s of the world.  You need a lawyer.  You need one now.  I am a layman, not even close to an attorney, ut I know that you are in a precarious legal position and you are contemplating action which will put you further and further within reach of the US immigration law.  Seek competent lagal advice now, before you travel any further down the road of dreams, lest they turn out to be a nightmare.

I was petitioned by my employer with an H1B Visa which has a validity of two years.  I arrived here in U.S. together with my wife and my son, as my dependents, last July 2011.

Confused at the beginning, sir.  It is not yet July of 2011.  perhaps you mean July 2010, or ????

My wife’s relatives here in U.S. were the ones responsible for the whole Visa Application.

Sorry, I don’t accept this statement.  Your name is on the visa, you are 100% responsible for the truth of the statements you swore to when you signed the application.  Step one to getting yourself out of any legal quagmire is to accept the responsibility for the actions you took.

My wife and i have no longer been living together for over a year back in the Philippines but we agreed to come to U.S. for practical reason and that is to give our child a better future and go on with our lives separately when the right time comes.  But, when we arrived, things didn’t go the way it’s supposed to be according to our plan.

Sounds very worthy and righteous but my lay opinion is you at least come very close to Immigration fraud right there.  For whatever reasons you and your wife were not living as man and wife, but you looked upon the H1B offer as a way to facilitate a ‘free ride’ to the US based on a charade.

Her relatives,who helped in making me getting through all the way to U.S. weren’t treating me nicely.  They sent me to their family-owned restaurant and forced me to do a dishwashing jobs and didn’t give me the chance to meet my employer.  To cut it short, I was left with no other options i could think of during that time in order to emancipate myself from the shackles of her relatives’ tyranny but to leave them behind and that sadly would have to include my wife and son.

Now this part here is pretty astounding to me.  According to the way you have written this, you were kidnapped, or illegally imprisoned or somehow forced to violate the terms of your visa by means which I don’t understand.  Why did you allow this to happen?  Did it ever occur to you to go to the police?  ^This is one of the reasons I say you need an attorney NOW, not later.  I hear all the time of young girls being spirited away and held in slavery, but usually it’s by force, and their chained up.  How did they not ‘allow” you to meet with your employer? Were you imprisoned, coerced by force or was this just done for “convenience”? You might have grounds for a criminal case here, which, again, with legal advice, might possibly put you in a better light with US Immigration.

Also, H1B visas are not free.  Someone paid a non-trivial amount of money to get your visa processed.  wasn’t that person defrauded?  Didn’t she or he care when the employee s/he paid to bring to the US didn’t show up?

My wife and son were back in the Philippines now.

Why did they go back to the Philippines?  And who is supporting them?

As of me, I’m somewhere within the 50 states with a very unhealthy immigration status.

In this state, where I am now, i met a Filipina who happens to be a U.S. Citizen already.  After she heard about my tragic story, she offers to help me with my immigration status.

Wow.  Thank God for Good Samaritans, eh?  Well let me point out a few flies in your ointment here.

1. Marriage for the purpose of changing an illegal’s status is very plainly considered immigration fraud.  The INS are experts at ‘sniffing this out”, too. be real, real careful here because you, and she, could be committing a crime just by taking certain legal actions.  Again, like a broken record, you need a lawyer very badly here.  Before you take any action, not after when further damage may have been done.
2. Marriage to a US citizen will not automatically guarantee you a chance to stay in the USA.  Assume you can convince the INS that this proposed marriage is “for love” and not convenience.  A very common action when H1B’s get married to US citizens is for the INS to demand the foreigner spouse return to their home country and then the US citizen partner must file an IR (Immediate Relative) petition to get them a visa to return to the US … after several years, typically.
3. This is the most important issue, in my view.  You can not marry anyone, at this time.  You are married.  I don’t know how to say this nay more kindly, but bigamy is illegal in the Philippines and it’s illegal in the USA.  But you do realize this by your next question, diba?

I just wanna ask you Phil if my marriage back in the Philippines has to go through the whole annulment process before i could re-marry here in the U.S.?

If you file for and are granted a divorce from your first (current) wife while you are in the US, you are probably free to marry in the US.  There are 50 US States,plus the District of Columbia.  each state has it’s own separate rules on divorce.  In some states, you almost can’t get a divorce if only one party resides there.  In others, you can.  procedures, costs, waiting times and many other details are way too complex to address here.

I came here with a “Married” status with a wife and a kid. Just wanna know also to what extent will that affect the marriage with the Good Samaritan girl i met here that we’re somehow soon planning to realize?….

It absolutely affects your chance of marriage now.  If you are able to get a divorce in the USA, will that enable you to marry your new girl friend?  Probably.  But will it be OK with the INS?  Personally, I doubt it.  Bear in mind you will still be married in the Philippines (and thus a bigamist, forever, unless you deal with this under Philippine law) and you will have burned a substantial number of bridges behind you … but if your lawyer advises you to take this route, Godspeed.

And here is comment number two:

Submitted on 2011/06/23 at 4:06 am From another reader who goes by Alfred

Hi Philly,

I have a Filipina friend living in UK, she is now citizen in UK and revoke her Filipino citizenship. She is married in the Philippines and want to re marry again a Filipino. My questions are:

1) Is there a way to file a divorce in UK about his first marriage in the Philippines?

First of all (and no insult intended, I am confused by the pronouns here.  Tagalog, with no gender pronouns makes for some very confusing conversations at home around the dinner table, let alone online by long distance).  I assume you are asking here id there a way your friend can file for a divorce to dissolve here previous marriage, in the Philippines?

Probably, yes.  here’s a capsule description of what is needed for divorce in the UK:

This section sets out the law of divorce currently in force in England and Wales. The main legislation is the Matrimonial Causes Act 1973, as amended.

There is one ground for divorce: that the marriage has broken down irretrievably. Before a court can grant a divorce, it has to be shown that the marriage has broken down. This is done by giving evidence in writing of one of any of five facts. One of these facts has to be proven.

The five facts are:

• the adultery of the other spouse;
• the unreasonable behavior of the other spouse;
• two years’ desertion;
• the couple has lived apart for two years and the other spouse consents to divorce; and
• the couple has lived apart for five years (no consent needed).

If there are financial proceedings, or proceedings about children, they run separately.

So to me, in my lay (non-legal viewpoint), your friend can file for divorce in the UK, and when it come through, she’ll be free to marry in the UK.  That’s the “easy” part.

To me, the harder part is, what is marriage?  Can you live with swearing a legal and moral oath in one country, knowing it’s not the truth, even if you can “get away with it”?

This is why I ask this question.  Although she may be legally free to marry in the UK, it’s also quite possible she is not legally free to marry under the laws of the Philippines.  And, although she gave up her Philippine citizenship when she took up UK citizenship, she may not be free of Philippine law at all.  Let me explain a bit further.

This question gets asked again and again and again. I don’t know, and I have had Filipino legal professionals tell me they don’t know either. Here’s why.

The writers of the Philippine Family Code, which governs marriage and the dissolution or annulment of marriage has a clause that says if a Filipino os married to a foreigner and the foreigner initiates (files for) a divorce in his/her home country and it is granted, then the Philippines will accept that divorce. So, one legal argument is, your friend is no longer a Filipino citizen, she gave that up when she accepted UK citizenship, so she should be able to file a UK divorce and the Philippines will recognize that divorce.

The other side of the argument is, though, she isn’t really a “foreigner’ at all, but a ‘former Filipino”, and as such, she doesn’t have the right to file a foreign divorce and have it recognized by the Philippines. There is plenty legal opinion that would agree with this side of the argument as well.

Under Philippine law, “former Filipinos” are treated differently than “real” foreigners. Examples,

• A UK citizens by birth can’t own land in the Philippines. Your friend, as a “former Filipino” can.
• A UK citizen can’t become a Philippine citizen unless s/he goes through a 5 or 10 year naturalization process, pass tests, etc. Your ‘former Filipino” friend can reacquire her Philippine citizenship by filling up a simple form, paying a small fee and asking for it.
• There are other examples where natural-born Filipinos who lose their citizenship are not the same as foreigners under Philippine law.

The reason it’s so hard to give an answer is, to my knowledge no one has taken this to court here in  the Philippines.  And since the law is “silent” on this little nagging detail, not even a lawyer can give you an authoritative answer, because it will someday come down to a court case … or the Congress of the Philippines amending the Philippine Family Code to cover this issue.

Until then? All bets are off.

2) If the divorce is granted, can she marry the Filipino again?

Sorry, I don’t understand.  Why would she go through the trouble of divorcing the guy and then remarrying him?  Are you really asking, “can she then marry the second Filipino you were talking about … for the first time?

If so, yes, so far as I can tell under UK law.  I see no issues, aside from all that I vented on in my response to your question one, above.

3) If the divorce cannot be filed, what is the possible solution to this case?

The other solution I would know that works is, your friend can file a case for annulment in the Philippines.  Takes time, costs money, but in the end, she comes out completely “clean” .. the NSO will list her as unmarried, and she’ll be totally legal.

And perhaps, more important to some, she’ll be 100% morally ‘clean’ as well … but, then again, the worth of that is strictly in the eye of the beholder.

Thanks.

You are both absolutely welcome, Alfred 1 and Alfred 2.  Godspeed. I always value questions and comments on Marriage, Nationality and Divorce, I just don’t always have easy answers.

Related posts:

1. Marriage, Nationality and Divorce
2. Philippine Marriage and the Am I Considered Married Question
3. A Bad Marriage Getting Worse — What Can She Do?
4. Is There Divorce in the Philippines?
5. A Reader’s Marital Problems — Is There Hope?