Don't get an annulment based on 'presumed death' if you know your spouse is alive

Dear Attorney Gurfinkel:

My spouse and I have been separated for many years and I have not had any contacts with him during that time. I recently met an American citizen in the Philippines, who would like to marry and petition me to go to the States, either as a spouse or a fiancée.

I heard that I can annul my marriage to my husband if I have not heard from him in over four years. Would there be any problems if I go ahead and get an annulment based on his “presumed death”, thereby enabling my American citizen fiancé to petition me?                                    

Very truly yours,

MJ

Dear MJ:

While marriage annulment based on the presumed death of your spouse is allowed in the Philippines, the Philippine Family Code still requires that it is based on “well-founded belief that the absent spouse was already dead.” Because such an annulment is a “summary proceeding” (and therefore much shorter than normal annulment cases), many people who know that their spouse is very much alive still try to pursue this “fast” type of presumed death annulment.

However, the US Embassy is now very wise to this scheme, and may question you and investigate whether or not your missing spouse truly is “dead”. If your spouse is still alive, it doesn’t matter how long you have been separated from him (whether 4 years, 7 years, etc.). Your marriage is still valid. If you know that your spouse is alive, you cannot obtain an annulment based on presumption of death.

In fact, I know some cases where a married person decided to take the “short cut” of annulling their marriage based on presumption of death. But during their visa interview, the Embassy wanted extensive evidence and other proof that their absent spouse was truly absent or missing with absolutely no contact whatsoever. The Embassy may ask for records of your spouse from the Bureau of Immigration, tax records (to see if he has filed taxes during the time when he was supposedly gone), may send investigators to question his relatives, and will otherwise take steps to track down the absent spouse to see if he is alive. If it is discovered that you obtained an annulment based on “presumption of death”, but your spouse is actually alive, the annulment may not be recognized for US immigration purposes, and could constitute fraud. Therefore, your American citizen fiancé (or spouse if you went ahead and married him) would not be able to petition you.

That is why it is important that if you are seeking US immigration benefits, you follow the law, rather than trying to find ways to get around it or looking for short cuts. An annulment based on presumption of death often raises suspicions and be investigated by the Embassy. Therefore, if you know your spouse is truly alive, you should consult with a Philippine attorney in order to terminate your marriage on valid, proper grounds, rather than looking for a quick-fix. Then a US Immigration attorney can process your case without this problem.

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