Philippine Marriage and the Am I Considered Married Question

Recently I received another comment with questions on this surprisingly common issue.  Is there any way a Filipino, who was legally married as recognized by the Philippines, be considered legally “un-married” by the Philippines and.or the US government.

(As always, remember that these are my layman’s opinions, offered for information and discussion purposes.  They are NOT legal advice and they should not be construed as legal advice in the Philippines or in any other country)

Of course, we all know (or if you didn’t, you will learn now), that there is no divorce in the Philippines.  The common legal “remedies” to being married include:

1. A Philippine court-ordered annulment under Philippine law.
2. A foreign divorce, if the divorce was initiated by the foreigner partner in a Filipino-Foreigner marriage.
3. The death of a spouse under normal circumstances.
4. The “presumptive death” of a spouse, as determined by a court of the Republic of the Philippines.

Today’s comments, (from reader Leonor, thanks, Leonor)  (in blue) and my responses deal with that fourth alternative, dissolution of marriage by the presumptive death of a spouse:

I have an American Fiancé in the US. He filed for K-1 petition for me and my kids.

Sounds good.  For those not familiar with the process, technically this is a K-1 and K-2 action.  The K-1 for the prospective spouse (in this case, reader Leonor) of the US citizen petitioner, and a K-2 for reader Leonor’s children.

From the USCIS.gov website:

… The K-visa categories for fiancé(e)s of U.S. citizens and their accompanying minor children (K-1 and K-2 visas) were created to speed up the immigration process for such individuals so they could travel more quickly to the United States.

By allowing a fiancé(e) and his/her accompanying minor children to be admitted to the United States as nonimmigrants, fiancé(e)s can be spared a long separation from their intended spouse while continuing their processing for an immigrant visa after the marriage takes place.

Recently we got our Notice of Approval from USCIS that our petition is approved.  In the petition, we included evidence or document that my previous marriage was terminated thru Presumptive Death of Spouse. An authenticated copy of Court Order / Finality and my NSO Marriage Contract with an annotation that my spouse was presumed dead by Court had been submitted together with the petition.

I think that’s great news, Leonor.  So far as I know, that is what is needed.

The fact that you have received notice that the petition is approved indicates to me that the US government has accepted the documents and thus considers you free to marry.

I’m not positive, but I surely think they would have disapproved the petition if they felt there was any legal problem.  The US Embassy doesn’t need the extra workload of scheduling interviews just to deny applicants their visa.

My one thought would be, just don’t ever tell anyone your suspicions that your husband is alive and hiding out.

This is, unfortunately, a not uncommon thing, and I’d be pretty sure the Embassy Consular Officer is going to bring this up in your interview.

You must be truthful, we all realize that, and I never advise anyone to lie, anyway.  It’s not only illegal and dishonest, but it’s a fast way to getting yourself in trouble for immigration fraud … usually accompanied by a lengthy ban from entering the USA.  But being truthful does not mean you have to bring the subject up, or volunteer information.

Let the examiner ask you, and answer only specific questions.  Don’t get nervous and spill your heart and soul out.  If you know something about your declared dead husband, you must answer truthfully, but remember that a suspicion or chismis you may have heard is not knowledge.

I’m harping on this point a little bit, because it’s been my experience with my Filipino friends and relatives that sometimes chismis and “stories” get blown a little out of proportion.  Actually, you see this every night on the TV news.  Some politician will make wild accusations that some other politician did something wrong, and the TV will report it almost as if the supposed wrong-doer had already been found guilty.

Yet nothing ever comes of it, no one ever files a case, and a week later, there is some other “villain’ taking up all the time on the airways.  The “scandal du jour” every night it seems.  Fiction seems very easily confused with fact here in the Philippines … in my opinion, of course.

Things get passed around by word of mouth until they seem to be facts, but when it comes down to the wire, they are just stories.

After more than 40 years in dealing with US government officials and investigations, again, the rule is, answer only the question that is asked , (just a yes or no, when possible) and don’t volunteer any information the Consular Officer doesn’t ask for, specifically.

Since you have a Filipino lawyer who helped you on this case, you might want to consult him or her regarding how much investigation was done to insure your ex really was presumably dead.  You might also show your lawyer this advice and ask for his/her opinion regarding answering questions.  Preparation never hurts.

From what I understand, getting the court to issue one of these “Presumed Dead” orders isn’t all that easy, so I feel in my heart you are on safe ground.

Just don’t ‘speculate” or “elaborate”, OK?

As a background, my spouse was declared dead by the court before then I met Fiancé.

I filed the petition to declare him dead since we cannot locate him anymore nor communicating with us.  He left me and my kids with no financial support or whatever.  I do believe he maybe with his mistress now and keep hiding of me and my kids.   So I decided to move on after exhausting my energy in looking for him from his friends, families, and relatives.

Though it was very painful at that time but I just have to be strong.  I just then thought of concentrating with the future of  my kids and supporting them in their studies and daily necessities.  Thank God everything is getting better and God has really never put me down after — thank God I do have a good job here.

So I thought of filing for an annulment of marriage then, so I can totally move on,  but my lawyer insisted that it would be difficult since we cannot locate my husband so he advised me that it would be good to file for a presumptive dead because that was the real issue – my husband is likely dead now and up to this time haven’t heard from him.

So in 2007, I got the Court Order or Finality declaring my spouse dead.  So, in 2008, I then met a very nice and loving American guy, which I must admit I am in love again for he is very loving and kind and especially for accepting me for what I am.

Now, I am preparing my documents for upcoming interview at the US embassy together with my kids, would you think the US embassy will grant me Fiancée Visa ?

As I said above, I think you are on safe ground.  No one outside the Embassy can predict these things, but nothing in your case raises any red flags to me.Legally, I think I am free to marry now.  But, is this acceptable in the US marriage as well ?

I just want to make sure everything is fine or smooth.

I see absolutely no reason that you wouldn’t be free to marry in any state of the US once your visa is granted.  No US state is going to go back and try to second guess the US federal government on this. If the USCIS considers you free to marry (and they already do,m since they approved the petition), and the US State Department (US Embassy considers you free to marry (that’s what the interview is all about), once you get that Fiancée Visa in your passport, you should be more than good to go.

Have you heard of any case which has same situation like me?

I don’t have any personal knowledge, but I certainly know that fiancée visa applicants with presumed dead spousal declarations have made it through the process … so travel forward hopefully.  And thanks so much for sharing. Your story may help others as well, which is the real reason I take the time to work on this stuff.  Godspeed.

Just wanna be confident and truthful enough when I get for interview.   Please share and God bless you more and always !   Thank you so much in advance.

Thanks, Leonor, and all my other great readers and commenters. Feel free to get in touch in any time, on Philippine Marriage Questions, Am I Considered Married or anything else that’s on your mind.