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Non- Appearance Annulment, Recognition of Foreign Divorce, Denied US Visa Petition

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attyjoyce


Reclusion Perpetua
Michael (not his real name), a former Filipino who became a naturalized citizen in the US, wanted to have his marriage with his Filipina wife annulled. He has been away from his wife for over fifteen years and has found a new love in New York. So he contacted a lawyer in Manila who offered a "worry-free, non-appearance annulment. "

The lawyer explained that all he needed to do was to narrate his marital history, sign the petition and pay a hefty sum as lawyer's fees. The lawyer said that he need not come to the Philippines to attend the court hearings. Michael is an IT-professional and could not be expected to know the nitty-gritty details of the annulment process in the Philippines. Besides, he was confident that the lawyer was giving him the correct advice. So he paid the fee and signed the petition as instructed. Three months later, he received a court decision that his marriage had been annulled.

Ecstatic, he immediately applied for a fiancé visa (K1 petition) for his Filipina girlfriend. Part of the requirement for which is for Michael to present his Single certificate/ Certificate of No Marriage (aka CENOMAR) to the US Embassy, together with a Certificate of Finality from the court which granted the annulment decision. Much to his surprise, the US Embassy denied his petition on the ground of fraud. The US Embassy discovered that the annulment decision was a bogus decision.

Michael was indefinitely barred from filing any kind of US visa application. Moreover, his status as a naturalized citizen was put in question because of the "fraud" he allegedly committed.

DENIED U.S. VISA PETITION

Q: What can Michael do to reverse the decision of the US Embassy denying his K1 visa petition?

A: Michael needs to go back to the Philippine court which rendered the annulment decision to verify if said court issued the decision validly. If it did, then he can ask for a certification from the court, then ask the US Embassy to reconsider. If it did not, then he has a bigger problem.

More likely, Michael will find that the court did not issue the annulment decision. The US Embassy found out that it was a bogus decision by simply checking with the court if the case number indicated on the Certificate of Finality was a case for annulment, and whether it was for Michael's annulment.

NON-APPEARANCE ANNULMENT

Q: Can a foreigner file a petition for annulment of marriage in the Philippines without appearing in court? In other words, is there really a non-appearance annulment?

A: There is no such thing as a non-appearance annulment. In at least two stages of the court proceedings, the petitioner will be required to appear personally-during the pre-trial and during the offer of the petitioner's oral testimony. Further, in uncontested petitions, the court will require the parties to personally appear before the fiscal during the collusion hearing.

Regrettably, many lawyers, in connivance with court staff members, make a lot of money offering this so-called "non-appearance annulment". What they do is to issue unauthorized court decisions granting the annulment. They go as far as having these decisions recorded in the NSO, so that ultimately, Michael can get a CENOMAR and remarry.

In other cases, the lawyer will present a dummy to take the witness stand pretending to be the petitioner, obviously to satisfy the strict requirement that the petitioner needs to "personally appear" in court.

One thing is for sure, if you filed the petition and you were not required to appear in court, then that is a bogus decision- a fake annulment.

Q: Can Michael simply re-file the annulment?

A: Technically, there was no annulment case filed yet so yes, Michael can re-file the annulment. I must say, however, that he has put himself in a very difficult situation by agreeing to get a bogus annulment decision. He can argue that he merely trusted his lawyer to take care of everything but then again, ignorance of the law excuses no one.

Q: What could he have done better?

A: Well, for starters, he could have inquired in detail about the procedure for annulment with his hired lawyer. The attorney-client relationship is one of trust and confidence so if you have not really met your lawyer, you should be doubly cautious.

Once you have hired the lawyer, make sure to get updates and read every pleading written for your case before submission to the court. Remember that your lawyer is your representative. As a rule, the client is bound by the acts of his or her lawyer.

Alternatively, he could have just filed for divorce in the US, instead of a petition for declaration of nullity in the Philippines. As we all know, the process is faster and the only ground needed to be proved is "irreconcilable differences. Michael can do this because he had become a naturalized US citizen.

RECOGNITION OF FOREIGN DIVORCE

Q: If Michael gets a divorce decree in the US, does he need to file a petition for recognition of foreign divorce in the Philippines?

A: As a rule, Philippine laws do not recognize divorces obtained abroad. After Michael gets his divorce, he is still married as far as Philippine law is concerned.

Q: After the divorce, what can Michael do so that the Philippines will recognize the divorce? In other words, can a foreigner file a petition for recognition of foreign divorce?

A: Michael can file a petition for recognition of foreign judgment. Although this is really a case for recognition of foreign divorce, it is erroneous to state that this is a petition under Article 26 of the Family Code of the Philippines. Article 26 applies only if the petitioner is a Filipino. Article 26 allows the Filipino spouse to revert to his or her single status after a divorce obtained abroad has capacitated the foreigner spouse to remarry.

If the petitioner is a foreigner, he can file for recognition of his divorce as long as he can prove that such divorce was granted in accordance with his or her national law.

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