Married Again? Getting Immigration Benefits Through a Valid Marriage

By: Aurora Vega-Buzon, Esq.

Julius and Arlene were college sweethearts in Manila. On their third year of college in 1999, Arlene told Julius her whole family was migrating to the United States. Not bearing the thought he might never see Arlene again, Julius asked her to marry him. Arlene agreed but made Julius promise to keep the marriage secret. Both were only 19 years old so they asked someone else to pose as their "parents" and sign the parental consent in their marriage license application. Within the year, Arlene left for the United States with her family. For the first 6-8 months, she and Julius constantly called, skyped and e-mailed each other. The calls and emails gradually waned and before their 2nd year wedding anniversary in 2001, they lost communication. Julius does not even know Arlene's exact address in Florida. With a degree and almost 10 years experience in computer systems, Julius came to the United States in 2008 on a work visa (H-1B) for a firm in Silicon Valley. He fell in love with and married his co-worker Gina Miller, in 2010 in San Jose, CA. Without disclosing his "secret marriage" to Arlene in 1999 and without terminating it, he filed for his green card based on his marriage to Gina, and got it promptly.

Letty and Mike both worked as pharmaceutical representatives in Manila. After 4 years of dating, they married in 2000. After Letty gave birth to their son Bryan in 2001, she stopped working. Mike, however, always worked late and frequently topped the sales quotas, that he was promoted as Regional Manager for Visayas. It came as a complete shock when a former co-worker told her that Mike has another family in Iloilo and has a daughter who is older than her 5-year old Bryan. When she confronted Mike, he owned up and confessed he was already a married man when he married Letty. Letty felt so betrayed to find out she was the second wife but thinking of the shame to her family, she decided to keep quiet. She demanded for financial support from Mike but told him to move out and allowed him to see Bryan every now and then. Letty sold their condominium and other belongings, and in 2009, left for the United States with Bryan. She lived with her aunt in Newport Beach, CA and there was wooed by Tommy Jones, a widower in his late 50s. In 2010, she became Mrs. Tommy Jones, and she and Bryan got their green cards based on Mr. Jones' petitions for her and Bryan.

Are the 2nd marriages of Julius and Letty in the United States valid, such that they are eligible to receive immigration benefits (green cards) as the legal spouses of United States citizens?

The law of the place of marriage generally controls the issue of validity of the marriage. We have to refer to the laws of the Philippines - where the 1st marriages of Julius and Letty were celebrated; and of California - where both are now domiciled, and where their respective 2nd marriages occurred. Generally speaking, if the prior marriage is void, the subsequent marriage is legal, inasmuch as bigamy can occur only through a marriage of a person already married.

Julius' 1999 marriage to Arlene in the Philippines without valid parental consent is voidable, as both were then under 21 years old (age of majority in the Philippines). A voidable marriage remains valid for all legal purposes until it is annulled or terminated; and under Philippine law, the petition for annulment can be brought by either Julius or Arlene, within five years from reaching the age of 21; and/or by their respective parents, before either Julius or Arlene turns 21. Julius did not get a decree of annulment, or divorce (he was already in the U.S. since 2008) before he married Gina in 2009, and it is not known whether Arlene secured an annulment or divorce in Florida or anywhere else, as her whereabouts is unknown since 2001. If Julius' marriage to Gina is proven bigamous, it is void, has no legal effect from its inception and cannot be the basis of granting Julius any immigration benefit. However, his 2nd marriage to Gina may be only voidable (valid, until adjudged a nullity) if he can prove that Arlene (a) has been absent, and not known to be living for five subsequent years immediately preceding his 2009 marriage; or (b) is "generally reputed" or believed to be dead. The action to annul his 2009 voidable marriage can only be brought by Gina or him, before any of them dies; or by Arlene, at anytime, if she re-appears and pursues an annulment case.

Without question, Letty's marriage to Mike in the Philippines is bigamous, both under Philippine and California laws; and a bigamous marriage is void from its inception - it never legally existed. The California case of Marriage of Campbell (2006) also states that "A void marriage is invalid for all purposes whether or not declared to be so by a court of law." Thus, even without getting a decree of nullity of her marriage to Mike, Letty's subsequent marriage to Tommy Jones in 2010 is valid as she had no existing and valid marriage at any time.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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