HELP PLEASE Visa denied

[bigred6ft4 8]

Sorry i did not have the time to write the whole story down but thanks for the responses Ill take it to the lawyer and go from there thanks

[Jeanne Adil 1,651]

5 minutes ago, geowrian said:

It needs to be formally terminated anywhere...presumably this would be in the Philippines since that's where there is a record of the marriage, but I guess it would be possible to do so elsewhere (a family law attorney would be best to answer this question).

and a Phillipine lawyer would have to search for him in the USA and still wit the normal 7 years to finalize a death notice

he had family here,  a job,  a place to live   

hard to just be nowhere then but somewhere now

[geowrian 22,337]

Just now, adil-rafa said:

and a Phillipine lawyer would have to search for him in the USA and still wit the normal 7 years to finalize a death notice

he had family here,  a job,  a place to live   

hard to just be nowhere then but somewhere now

Agreed that they shouldn't have issued the presumptive death so easily. That said, there is no 7 year wait for PH, and PH laws != US laws.

[bigred6ft4 8]

Civil Code of the Philippines :Presumptive Death

attykalibre

Civil Code Of the Philippines

13 February 2017

Hits: 3808

a.       Ordinary Presumptive Death (Article 390)
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for
all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
1. If absentee is 75 or below

7 years – for all purposes except succession

10 years - for succession
2. If absentee is over 75 years old

5 years for all purposes
b. Qualified Presumptive Death (Article 391)
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years.

Person on board a vessel lost during a sea voyage, missing airplane ,
person in the armed forces who has taken part in war, a person who has
been in danger of death under other circumstances and his existence is not
known.

 

 

 

 

 

 

General Rule: 4 years for all purposes
Exception: 2 years for purposes of remarriage (Article 41, Family Code)
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of
death under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must institute
a summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.

When can you ask for a decree of presumptive death for purposes of
remarriage?
1. 4 years after disappearance
2. 2 years if the circumstances fall under Article 391

Under these rules on presumptive death, there is no need for a court
decree. The mere running of the period raises the presumption of death.

However, for purposes of remarriage, a summary proceeding is required
under Article 41 of the Family Code. Otherwise, the subsequent marriage
is void.

The rule governing declaration of presumptive death is found under Article 41 of the Family Code of the Philippines. The provision of law provides:

“A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is a danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

The four essential requisites for the declaration of presumptive death were enumerated as follows by the Supreme Court in the case entitled, Republic of the Philippines vs. Cantor (G.R.No.184621, December 10, 2013; ponente, former Associate Justice Arturo Brion):

“1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.”

In the case entitled Republic of the Philippines vs. Orcelino-Villanueva (G.R. 210929, July 29, 2015; ponente, Associate Justice Marvic Leonen), the Supreme Court ruled:

“The well-founded belief in the absentee’s death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort (not a mere passive one). Mere absence of the spouse (even beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to communicate or general presumption of absence under the Civil Code would not suffice. The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of “well-founded belief” which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but, more important, whether the absent spouse is still alive or is already dead.”

 

 

[Ben&Zian 4,398]

Not sure what good a lawyer will do.... I mean, so Philippines court declared the man dead so she could remarry... now original husband is found alive and well... that kind of voids the whole Philippines death certificate... hence, she then remains married to him in a legal sense. 

[Jeanne Adil 1,651]

1 minute ago, geowrian said:

Agreed that they shouldn't have issued the presumptive death so easily. That said, there is no 7 year wait for PH, and PH laws != US laws.

but to declare a USC inthe USA dead you do need to follow our laws

 

[Marieke H 2,512]

Technically, the denial seems to be because of the lack of evidence that your state will accept the presumptive death certificate, if I read it correctly. 

 

However, since you know he is still alive, the best way to solve this is to sort out this mess first, get a proper divorce, and then refile.

 

Also, I have reported your initial post to the moderators, because I don't think the ex husband's full name should be posted here.

[bigred6ft4 8]

I agree with all of you guys just trying to find a solution

[Jeanne Adil 1,651]

4 minutes ago, bigred6ft4 said:

Sorry i did not have the time to write the whole story down but thanks for the responses Ill take it to the lawyer and go from there thanks

USCIS will look hard at any application now as what she did may be concidered misrepresentation by her and maybe  a lie 

i hope not only is your attorney a good one but completely honest about this situation

[Ben&Zian 4,398]

Honestly easiest is a divorce... but if they were married in the Philippines that can take time and be costly. Then add in the complication of the whole death court order thing.

Edited October 1, 2018 by Ben&Zian

[bigred6ft4 8]

they were married in the Philippines.

[Jeanne Adil 1,651]

6 minutes ago, bigred6ft4 said:

Civil Code of the Philippines :Presumptive Death

 

attykalibre

 

Civil Code Of the Philippines

 

13 February 2017

 

Hits: 3808

 

a.       Ordinary Presumptive Death (Article 390)
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for
all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
1. If absentee is 75 or below

7 years – for all purposes except succession

10 years - for succession
2. If absentee is over 75 years old

5 years for all purposes
b. Qualified Presumptive Death (Article 391)
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years.

Person on board a vessel lost during a sea voyage, missing airplane ,
person in the armed forces who has taken part in war, a person who has
been in danger of death under other circumstances and his existence is not
known.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

General Rule: 4 years for all purposes
Exception: 2 years for purposes of remarriage (Article 41, Family Code)
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of
death under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must institute
a summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.

When can you ask for a decree of presumptive death for purposes of
remarriage?
1. 4 years after disappearance
2. 2 years if the circumstances fall under Article 391

Under these rules on presumptive death, there is no need for a court
decree. The mere running of the period raises the presumption of death.

However, for purposes of remarriage, a summary proceeding is required
under Article 41 of the Family Code. Otherwise, the subsequent marriage
is void.

 

The rule governing declaration of presumptive death is found under Article 41 of the Family Code of the Philippines. The provision of law provides:

 

“A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is a danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

 

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

 

The four essential requisites for the declaration of presumptive death were enumerated as follows by the Supreme Court in the case entitled, Republic of the Philippines vs. Cantor (G.R.No.184621, December 10, 2013; ponente, former Associate Justice Arturo Brion):

 

“1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

 

2. That the present spouse wishes to remarry;

 

3. That the present spouse has a well-founded belief that the absentee is dead; and

 

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.”

 

In the case entitled Republic of the Philippines vs. Orcelino-Villanueva (G.R. 210929, July 29, 2015; ponente, Associate Justice Marvic Leonen), the Supreme Court ruled:

 

“The well-founded belief in the absentee’s death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort (not a mere passive one). Mere absence of the spouse (even beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to communicate or general presumption of absence under the Civil Code would not suffice. The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of “well-founded belief” which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but, more important, whether the absent spouse is still alive or is already dead.”

 

 

 

 

 

but it was only 5

[bigred6ft4 8]

When can you ask for a decree of presumptive death for purposes of
remarriage?
1. 4 years after disappearance
2. 2 years if the circumstances fall under Article 391

Under these rules on presumptive death, there is no need for a court
decree. The mere running of the period raises the presumption of death.

However, for purposes of remarriage, a summary proceeding is required
under Article 41 of the Family Code. Otherwise, the subsequent marriage
is void.

 

The rule governing declaration of presumptive death is found under Article 41 of the Family Code of the Philippines. The provision of law provides:

 

“A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is a danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

 

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

 

The four essential requisites for the declaration of presumptive death were enumerated as follows by the Supreme Court in the case entitled, Republic of the Philippines vs. Cantor (G.R.No.184621, December 10, 2013; ponente, former Associate Justice Arturo Brion):

 

“1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

 

2. That the present spouse wishes to remarry;

 

3. That the present spouse has a well-founded belief that the absentee is dead; and

 

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.”

 

[geowrian 22,337]

13 minutes ago, adil-rafa said:

but to declare a USC inthe USA dead you do need to follow our laws

Nope. PH can declare absolutely anything they want. The US can just ignore that declaration, though.

 

Edit:

Let me reverse it and provide an example.

PH does not have divorce (except a VERY limited circumstance). But one can divorce outside PH fine. PH will not recognize it, but the US will. Within PH you could arrested for bigamy for remarrying, whereas in the US the marriage is perfectly legal.

Edited October 1, 2018 by geowrian

[bigred6ft4 8]

Thanks

geowrian

  I will have to figure it out Will keep you guys posted I am meeting a good lawyer next week and go from there