Q. I am a new permanent resident. I came to Toronto with my daughter with a “Separated” status. My ex- wife and I have been separated for 10 years but with no legal papers. I have a live-in partner who I left back in Manila. Could you please advise as to my options how I can bring her here and be legally married. Further, my partner plans to apply for a visitor visa, and if approved, she will be in Toronto this summer.
Thank you so much for your advice. RP
Ans: As permanent resident, it is safe to assume that you are a still a Filipino citizen. As such, despite of your de-facto separation from your wife for the last 10 years, you are still legally married to her. Being the case and in order to establish the legal basis for you to sponsor your live in partner in the Philippines, it is therefore imperative that you must first legally marry her.
This means that prior to such marriage, you have to severe your first marriage. Initiating an annulment proceedings in the Philippines could do this. This is rather a long and tedious process considering that you have a child with her and more so, if during your marriage, you have engendered real estate properties.
Your other option is, if you have not heard from each other for the last four (4) consecutive years, you could initiate legal proceedings in the Philippines, for the Declaration of Presumptive Death of your spouse.
Under the law, prolonged absence of a spouse whose whereabouts cannot be ascertained could raise a presumption of death. And where a spouse is absent for four(4) consecutive years and the other spouse present has a well-founded belief that the absentee spouse might be dead or in danger of death attendant to the disappearance , the absence of two(2) years is sufficient to engender the presumption of death for purposes of contracting a subsequent marriage or remarriage.
Under this remedy(Declaration of Presumptive Death), when a spouse has been absent or presumed dead under Art.41 of the Family Code, and the spouse present wish to contract another marriage, the law requires the said spouse to first secure a judicial order for the Declaration of Presumptive Death. Failing to do so will render the subsequent marriage null and void.
Subject to the further provisions of Art.41, with the issuance by the Court of the Declaration of Presumptive Death of the absentee spouse, you may now have the legal basis to contract a subsequent marriage.
Even assuming that your live-in-partner may be able to secure her tourist visa and come over to Canada to celebrate marriage, this marriage being void , will not have any legal effect whatsoever for immigration purposes, among other. Be mindful that as Filipino citizen, the laws on marriage and civil status are still governed by the laws of the Philippines, regardless of your residence.
Your other option is to wait until you become a Canadian citizen. Thereafter you can initiate Divorce proceedings against your wife in the Philippines to formally severe your subsisting marriage. If your petition is given due course by the Court in Canada, this will in effect severe your marriage in the Philippines. The subsequent marriage thereafter is deemed valid under the laws of the Philippines and Canada. As such subsequent marriage can be a legal basis for your spouse sponsorship to Canada for immigration purposes. Looking forward you’ll find the above in order.
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