Q. Hi Atty. Wong, I was married to MEL in 1989 when I was only 19 years old with the consent of our parents. We have two children who are now 23 and 21 years old respectively. They are still in the Philippines.
However, sometime in year 2001 our marriage soured and in the presence of our barangay captain, we both agreed to live separately and the custody of the children under her.
In 2006, I got married to Mary in the Philippines. We were able to get married notwithstanding my existing and subsisting marriage, as we were able to secure a “Certificate of no Marriage” from the National Statistics Office (NSO).
After our marriage, Mary sponsored me to Canada. I did not include and disclosed in my immigration papers my two children with my first marriage. In my second marriage with Mary, we have two children ages 6 and 8 years old who were all born here in Canada.
Questions: Is my marriage to Mary valid considering that I had still a subsisting marriage with Mel when we got married?
Since, I and Mary are both Canadian citizens and lives in Canada, can we married now in Canada or Philippines, or I need to file annulment or divorce in the Philippines first?
What steps are needed? Will Canada immigration find out about my previous marriage to Mel? What about the “Certificate of No Marriage? What is the implication of this document?
How long will it takes to file an annulment or divorce in the Philippines and how much will it cost? Is there a need for me to be in the Philippines during the proceedings or processing? Your help is appreciated.
Ans:
Hello Antonio. Your situation is quite complicated. Assuming that your first marriage in the Philippines in 1989, has complied with the essential and formal requisites of a valid marriage under the Family Code, then your first marriage is deemed valid.
Having a pre-existing marriage, it follows that your subsequent marriage with Mary in 2006 is null and void, notwithstanding the you were able to secure a “Certificate no Marriage” from the Office of Civil Registrar General of the National Statistic office (NSO) . Furthermore, please bear in mind that you contracted your second marriage in 2006; you were still a Filipino citizen. As such your family rights and your civil status are governed by Philippine law.
The issuance of the “Certificate of no Marriage” does not necessarily mean that your marriage in 1989 is not valid. It only means that as far as the records of the NSO is concerned; the said office has no record of your previous marriage. The absence of such record suggests that the solemnizing officer of your marriage failed to furnish the NSO the marriage contract. However, please bear in mind that the validity of marriage does not depend on the registration or the recording of the marriage contract in the office of the Civil Registrar.
Moreover, the so called separation agreement that you and your wife have executed before the Barangay Captain, did not severe your marriage. Only the court of law can severe and extinguish marriage.
As you are now a Canadian citizen, and if you wish to extinguish or severe your first marriage, what you can do is to initiate and secure a divorce here in Canada. Once you got the divorce, then your first marriage is considered as severed.
Legally, if you are able to obtain and secure a divorce in Canada as regards to your first marriage, then you are free to contract another marriage and this will have a valid and legal effect. Thus, if you want to legitimize your marriage with Mary, you can marry each other again here in Canada. In my view, once you got your divorce and as you are already Canadian citizen, your subsequent marriage in Canada is valid and thus there is no need for you to marry in the Philippines or elsewhere. That’s it.
However, if you intend to marry in the Philippines again, then you have to clear out your records and the fact of your marriage in the Philippines. This process entails legal works, and you have to file a petition for the recognition of your divorce by the Philippine Court. Please note that as a general rule, divorce amongst Filipino citizens is not recognized in the Philippines.
You need therefore the services of a lawyer in the Philippines in order to prove the fact of such divorce according to the rules of evidence, in Philippine jurisdiction, as held in the said recent case of Garcia vs. Recio, G.R. No.138322, October 2, 2001, 366 SCRA 437. Thus, be sure to make handy the proof of your citizenship and the Divorce Decree/Judgment duly authenticated by the Canadian Court who issued it and as well the authentication of other relevant documents by the Philippine consulate in Canada.
Once, the Philippine court approves the petition, and then your divorce decree will be recorded in the NSO per order of the court. This proceeding being summary in nature will not take long a long time. Perhaps in less than a year, depending on your lawyer’s resourcefulness and competence.
However, this will not put an end to your issues due to your subsequent marriage with Mary in 2006 which in all probability is duly recorded with the NSO. This will be a problem later on, when you intend marry again in the future, like marrying Mary.
Please note that even with the annulment of your first marriage by virtue of your divorce in Canada, the severance of your first marriage did NOT automatically validate your second marriage the same being void ab initio .
The above proceedings will cost you considerable sum of money and may require your initial presence in court. The cost could vary depending on the professional standing of your lawyer, among others.
Perhaps, after obtaining your divorce , and if your purpose is just to legitimize your second marriage with Mary and considering further that you and Mary are already Canadian citizens, you may opt to marry each other again in Canada and not to bother anymore in getting married in the Philippines.
As to whether or not, the immigration authorities here in Canada will discover or find out your situation, this corner is not in a position to know about or to speculate .
For further guidance and should you wish , it is suggested that you confer with your lawyer in your community for further professional assistance. Thank you for writing.
