Void but existing marriage

Today, we tackle one situation that I think is worthy of being highlighted so as to educate our readers and clear up any confusion and misguided information.

Elsa, a former Filipino citizen who has since been naturalized, went back to the Philippines for her high school homecoming. During the activities, she met her ex-boyfriend Dante, who like her also flew in from Taiwan just to join in the reunion. Dante further told her that he has remained single since their breakup and that he is still in love with her. Elsa, who has long been divorced, also realized that she still cares for him and was open to the idea that they could rekindle their relationship.

And so before coming back to their respective countries, the two former lovers decided to take a second chance. Soon they were exchanging gifts and emails, long-distance phone calls, and even came back to the Philippines the following year for their civil wedding. When Elsa came back to the US, she intended to file a spousal petition for Dante. However, he was cool to the idea. He gave out so many reasons why he cannot live here in the US --he still has a contract to finish in Taiwan, or he has to take care of his ageing mother, or he is afraid to start a new life in the US.

Elsa became suspicious of all the excuses that Dante gave her. She started to investigate and was told by Dante's Filipino co-worker in Taiwan that he is married there. When Elsa confronted Dante about it, he admitted to her that it was true and that is really the main reason why he does not want to come to the US. Elsa was very furious and immediately told Dante that she is separating from him and that she will be divorcing him.

When Elsa came back to the US, she was convinced by her friends that since she did not change her last name and did not change her legal status in any of her documents in the US, she remained single anyhow and she does not need to file a divorce in the US or annulment in the Philippines. Furthermore, since Dante was not legally able to marry her by virtue of his being married in Taiwan, she can consider their marriage as void.

Elsa's situation is not uncommon. As heartbreaking as it is, these stories often come up when an inquiry of prior marriages is brought up either during USCIS interviews or after USCIS has reviewed the petition. In Elsa's case, she is still considered married under either US or Philippine law as long as her marriage to Dante is not nullified by the courts. Elsa cannot just unilaterally declare her marriage to be null and void just because of Dante's admission. She should seek recourse from the courts in having that marriage judicially ordered as void ab initio (void since the beginning) in order for that marriage to be totally dissolved. It is entirely irrelevant if she did not change her last name or change her legal status here in the US, she is still married under her state's law. It is also immaterial whether our knowledge or opinion of a marriage being bigamous or inherently void. Only the courts can declare as such.

Elsa must also be mindful that there are consequences of her marriage to Dante that relate to the status of her properties, civil relations, taxation, and other areas of her life. If she has to realign her life after such a terrible experience with Dante, she must have that marriage legally and officially voided by the courts. If there is none, we are left with a perceived "void but still existing" marriage.