Consulate wants something that is impossible

[Boiler 44,929]

Oh and it is called an Advisory Opinion, the brief submitted by your legal team.

[mikede1025 2]

Presumptive of death of a spouse is applicable in the Philippines.A lot of Filipina before who are married and was petition for k1 in the US who used this route to legally end their marriage.As years goes by US Embassy in Manila is beginning to see this way as a fraud that is why most Filipina goes to this route of ending their marriage actually gets denied or else ask of proof of death certificate.One of the things your fiancée should think of is why going this process when annulment is the most safest way to go.Try to read some stories online about FILIPINAS using presumptive of death as way of telling / presenting the consul during the interview lately ,most of theme are being ask the same thing they ask your fiancée for additional documents to support the presumptive of death court order you present before the consul.And besides you cannot just present a court order during your interview,you need to show the consul your marriage certificate with an annotation on it,stating on the right side of the paper that your fiancée is legally allowed to be married.Court order is not the final process yet ,you need to pass that to NSO for a final annotation on her marriage certificate..Another issue is her spouse is US citizen!there is allot of ways to know here in the US if he is still alive..THat is one of the red flag...wHy go to presumptive way when annulment is the safest way,costly but sure...Presumptive of death is shortcut way which consul anomalies on it.

Thank you, Speech33. Problem is that it's already done that way. Her lawyer at the time told her this would be the quickest way rather than annullment. Of course, she didn't know so she chose quick. You know, had I read this a year and a half ago I wouldn't be in this boat now. But like I say, it's done and here I sit with no way out it seems.

Mike

[NikLR 13,227]

Can she still get an annulment?

A normal one I mean?

[mikede1025 2]

Can she still get an annulment?

A normal one I mean?

That's an interesting thought, NLR. But I don't know that answer at this moment but I'll be sure to look into that.

Mike

3 pages this is the 45th reply, or he could have checked to see what was needed!

Oops 46th.

You're counting my pages and the number of replies??? Do I owe you anything for the extra?

[Speech33 0]

Hmmmmmppppp,that is a very wrong way route she choice to...If you really want her to come here,do the annulment this time and pleaase let her choice another lawyer.Annulment depends on the situation,but here situation is kind very easy.It wont take that long.Get a right lawyer,you know there is lawyer who's expertise is annulment.Another route you can do is to let her go to the Registrar's office where the weeding is register( Local Registrar's office) and show the paper to their head,they know what to do with it.If I'am not mistaken if your gf will get her Marriage Certificate by now,it still says she is married...It Is without annotation on the right side.I think you miss some process,as what i say after the court release its final order your gf should submit that document to the local Registrar's office.That office will submit that to the main branch of NSO for annotation.The court order that you have in hand is not yet the final process.I think it would take it months for that annotation process not unless you know somebody working there personally.Your lawyer should know this things if his/her expertise is about annulment/Family law.Iam so sure during your interview when the consul take a look at your file on NSO,you are still married that is why he/she ask you a death certificate.They have access instantly on NSO,NBI ,have she noticed the consul keep on looking at computer while she is interviewed?..It is the routine way,specially if the petitioned fiancee is previously married.

[Boiler 44,929]

You're counting my pages and the number of replies??? Do I owe you anything for the extra?

The only thing I knew coming into this is that Annulments are difficult in PI and iffy activity in getting one or avoiding seems to be rife.

I was pretty certain that if it was this easy to get around then it would both be common and probably have a section in the guides.

I assumed that not a lot of effort was used to track him down, assuming his current location is unknown. Judging from some comments he is known to be alive. Which suggests his location is also known.

So no I could not see the Consulate going for it, a few seconds searching and there was link after link about the subject.

[Harpa Timsah 13,258]

I find it interesting that the presumption of death thing can be obtained after 4 years, and that is exactly how long the OP says his fiancee has been without contact from the old husband.

Like the timing of it all was planned.

[n and m 10]

My fiance had her interview in Manila on 1/23/14. She had filed for "Presumpitve Death" from a former husband. That marriage was a Philippino marriage. Ultimately the courts granted the presumptive death and gave her a copy of the court order which states that and it also states that she is legally able to pursue any subsequent marriage now without incurring any criminal liability. This is in accordance with article 288 of the Family Code. This court order goes on to state that "....His declaration of absense and presumption of death is without prejudice to his reappearance...."

This is very clear to me and very clearly states that she is legally able to remarry. Well, the consulate told her that she needed to obtain a death certificate. WHAT???? He was "Declared an absentee and for all intents and purposes is PRESUMED dead". He was presumed dead as allowed for within this law. He was not DECLARED dead. It is impossible for us to obtain a death certificate on someone who we have no idea is dead or not dead. He is also an American. The consulate says to her, "what if he is not dead and he comes forward"? Again, WITHOUT PREJUDICE covers that as well. It means that no matter now if he is dead or not or if he comes forward or not, this marriage is no longer and she is able to marry.

I have a desperate need now to contact someone at the embassy there who has authority so that I can have this discussion with them to show and explain to them how the consulate is NOT looking at this document correctly and that she is making and completely invalid and totally impossible request. How? Who? What can I do here? Who can I contact? We were given two other trivialities to take care of as well but we can do those with no problems. But this request goes beyond the pale. Someone please help me with who or how to contact.

Sorry, but I tend to repeat myself when I am upset and I hope I didn't over-explain this.

Mike

The Family Code of the Philippines provides for a period of four (4) years for an absentee to be presumed dead and two (2) years in the Civil Code of The Philippines in case "there's a danger of death" in the disappearance of the absentee. There is no issue that this circumstances and requirements are met because the Regional Trial Court of Argao Cebu has issued an order Declaring the absentee xxxxx as Presumptively dead.

The Court Order states " His declaration of absence and presumption of death is WITHOUT PREJUDICE to his reappearance" means that despite of this order the absentee spouse can institute an action with regards to the case as soon as he reappears. This interpretation is supported with the last sentence of the court order that states "The judgment is immediately final and executory in accordance with Article 238 of the Family Code "subject to the reappearance of the absentee spouse". .....................................Also Article 42 of Family Code states that The subsequent marriage referred to in article 41 ( by declaring a person as presumptive dead) shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

IMHO, getting married by virtue of a court order declaring the absentee spouse of one party is not a guarantee that you will live happily ever after because your marriage will always be subject to the reappearance of the absentee..and I don't know if this has something to do with the action of the Manila USEM.

There is no death certificate to speak of because there's no actual death. The person is an absentee that's why his whereabouts is unknown. So getting a death certificate is a mission impossible in this case.

I think the best thing to do here is talk to USEM officials for clarification on your case. I don't know if you need a company or hire a lawyer because I believe USEM officials are too genius for all the kind of regional based family and immigration cases and lawyer will only be there for you to interpret the law/order..In you case, there is nothing too ambiguous, the court order declaring the absentee spouse as presumptive death capacitates your fiancée to contract a subsequent marriage subject to the reappearance of her absentee spouse...

Edited January 28, 2014 by n and m

[IMPC 26]

Hi Mike,

Just want to ask what happened to your application now? I have same case with your fiance and I wanted to know if what happened to your petition? Your kind update is much appreciated!

Best regards,

IMPC

[Darnell 8,478]

Presumption of Death better, IMO, for the OFW,

and NOT for USA DoS stuff.