Fiancee from Philippines – Still legally married

 

We get many enquiries from lovesick Australian men who’ve met Filipina girl’s who’ve stolen their hearts. And being the positive and trusting chaps that Aussies tend to be, the fact that the lady is still legally married often doesn’t phase them. They will assume that can go ahead and marry her and that this issue will be resolved very simply. She will soon have a partner visa or a prospective marriage visa (aka fiancée visa) and will be on a plane for Australia before you know it.

And poor ol’ Jeff has to be the one to tell them the bad news that it’s not that simple!

 

What to do if your Filipina fiancee is still legally married? To get an Australian partner visa your lady from the Philippines must legally free to marry.

 


Find this topic interesting? Click BELOW and listen to a PODCAST of Jeff Harvie elaborating on the article and giving far more information than the original BLOG article contains.Find this topic interesting? Click BELOW and listen to a PODCAST of Jeff Harvie elaborating on the article and giving far more information than the original BLOG article contains.

subscribe to Down Under Visa Podcast

 

Misunderstandings about Philippines marriages

The Philippines is one of two countries remaining in the world that has no legal divorces. The other is Vatican City. Australia has had “no-fault divorce” since the enactment of the Family Law Act in 1975 along with the establishment of the Family Court the same year. The only grounds for divorce is an irretrievable breakdown of the marriage, evidenced by a 12 month separation. It makes for fairly quick and easy divorces for Australians, and given that it’s been in law for more than 40 years there would be very few left alive who would be familiar with anything less.

The Philippines has annulments, which require the establishment of a psychological impairment in one of the parties that showed they didn’t understand what they were committing to when they were otherwise legally married in the first place. Definitely not simple!

 

Common misconceptions

“He ran off and abandoned her a number of years ago!”

Sorry, but running off doesn’t dissolve a legally binding marriage. It doesn’t work like that in Australia either.

“He never supported the children”

As above. Still married! And if the kids were born in wedlock, he will still have legal custody even if he’s a terrible father. This will cause issues if kids are included in partner visas or if you apply for dependent child visas later.

“He was still married when he married her”

Yes, this may well be grounds to declare the second marriage null and void, but need to prove it in a court of law first!

“We were going to marry in Australia”

Wrong! That’s called bigamy, and it’s a crime in Australia. Australia will recognize her legal marriage in Philippines, and will not allow a second marriage.

“The lawyer said an annulment would cost PXX,XXX.XX, and would take 3 months”

Most annulments take 12 months or more, and the outcome and certainly the timing is not predictable. And some attorneys lie!

“We thought she could come to Australia on a tourist visa, organize a divorce in Australia for her and then we can marry!”

Wrong again! I can’t and won’t advise on matters of family law, but I’ve never heard of anyone on a tourist visa getting an Australian divorce. Can be done later if a lady becomes an Australian resident. Again, consult an Australian lawyer.

 

Solutions when she’s already married

The first solution is the one that no one likes to hear:

 

Patience

In other words you wait it out and jump through the legal hoops that the system has in place for you. That means:

  • Find a good and reputable attorney in the Philippines who has a good reputation for successful annulments. Avoid the cowboys with promises of speedy delivery.
  • You! Rich white man! Stay out of it! You can’t find her an attorney from your computer at home, and you sticking your nose into it will more than likely lead to further delays and costs. Don’t talk to the attorney. Don’t turn up in the court.
  • And be prepared for a long wait.

 

Less patience, but a bit of flexibility

You may apply for a partner visa based on two different scenarios:

  1. Marriage – ie. either marrying before, or marrying a bit later on a fiancée visa (prospective marriage visa), as long as you’re both legally free to marry!
  2. A de facto relationship – If you are in a de facto relationship of 12 months or more, we may lodge a partner visa application based on that.

The second option applies even if one or both of you are still legally married to someone else, as long as the relationship that went with the marriage is well and truly over.

But note you do need to be actually IN an EXISTING and committed de facto relationship, and have been in that relationship for 12 months or more. You can’t say “Yes, right! Let’s start one of those! Visa please??!!” You need to commence leading a shared-life with your Filipina lady (or Filipino gentleman) 12 months before the visa application is lodged, and it needs to be a solid shared-life arrangement where you both think and act as one.

Not a bad option for many, because we find that many couples have in fact been doing just this and sometimes have been for a few years before they looked into getting an annulment. In other cases, we give couples guidance into what constitutes a sound de facto relationship and what they need to put into place so that after 12 months they are ready to apply for a partner visa without having to go through the trouble of an annulment.

And note that you CAN have gaps in a 12 month period of a de facto relationship if these gaps are unavoidable. You don’t need to have a solid and unbroken period of 12 month cohabitation if visa provisions and the need to work has made this difficult. Again, Down Under Visa have had a lot of experience in this area and are happy to help.

 

 

David and Maricel - Happy Down Under Visa clients
Coping with Australian Visa Document Errors and Delays