Annulment of No-Appearance in the Philippines Unveiled
Michael (not his real name), a former Filipino who became a naturalized US citizen, wanted his marriage to his Filipino wife annulled. He has been away from his wife for more than fifteen years and has found a new love in New York. So he contacted a lawyer in Manila who offered him a “no-show, no-worry annulment.”
The attorney explained that all he needed to do was narrate his marriage story, sign the petition, and pay a large attorney’s fee. The lawyer said that he did not need to come to the Philippines to attend the court hearings. Michael is an IT professional and he could not be expected to know the nitty-gritty details of the cancellation process in the Philippines. Also, he was confident that the lawyer was giving him the right advice. So he paid the fee and signed the petition as instructed. Three months later, he received a court decision that his marriage had been cancelled.
Ecstatic, he immediately applied for a fiancé visa (K1 petition) for his Filipino girlfriend. Part of the requirement is for Michael to submit his Certificate of Singleness/Certificate of Non-Marriage (also known as CENOMAR) to the US Embassy, along with a Certificate of Finality from the court that granted the annulment decision. To his surprise, the US Embassy rejected his request for fraud. The US Embassy found that the cancellation decision was a bogus decision.
Michael was indefinitely barred from filing any type of US visa application. In addition, his naturalized citizen status was called into question because of the “fraud” he allegedly committed.
US VISA PETITION DENIED
Q: What can Michael do to reverse the US Embassy’s decision to deny his K1 visa petition?
A: Michael needs to go back to the Philippine court that made the annulment decision to see if that court made the decision validly. If he did, then he can request a certification from the court and then ask the US Embassy to reconsider. If it wasn’t, then he has a bigger problem.
Most likely, Michael will find out that the court did not issue the annulment decision. The US Embassy discovered that this was a bogus decision simply by checking with the court to see if the case number listed on the Certificate of Finality was an annulment case and if it was for Michael’s annulment.
CANCELLATION FOR NO APPEARANCE
Q: Can a foreigner file a marriage annulment petition in the Philippines without appearing in court? In other words, is there really a nullity for non-appearance?
A: There is no such thing as a no-show vacate. In at least two stages of the judicial proceedings, the petitioner will be required to appear personally: during the preliminary investigation and during the offering of the petitioner’s oral testimony. Additionally, in uncontested petitions, the court will require the parties to appear personally before the prosecutor during the collusion hearing.
Unfortunately, many attorneys, in collusion with court staff members, make a lot of money by offering this so-called “vacation by default.” What they do is issue unauthorized court rulings granting annulment. They go to the extent of registering these decisions with the NSO, so that Michael can ultimately obtain a CENOMAR and remarry.
In other cases, the attorney will present a dummy to take the witness stand posing as the petitioner, obviously to satisfy the strict requirement that the petitioner must “appear personally” in court.
One thing is for sure, if you filed the petition and you were not required to appear in court, then that is a false decision: a false annulment.
Q: Can Michael just resubmit the cancellation?
A: Technically, no annulment case has been filed yet, so yes, Michael can refile the annulment. However, I must say that he has put himself in a very difficult position by agreeing to obtain a bogus annulment decision. He can argue that he just trusted his lawyer to take care of everything, but then again, ignorance of the law excuses no one.
Q: What could you have done better?
A: Well, for starters, you could have inquired in detail about the annulment proceedings with your retained attorney. The attorney-client relationship is one of trust and trust, so if you don’t really know your attorney, you should be doubly cautious.
Once you have retained the attorney, be sure to get updates and read all written pleadings for your case before filing it with the court. Remember that your lawyer is your representative. As a general rule, the client is bound by the acts of his lawyer.
Alternatively, you could have filed for divorce in the US, rather than petition for an annulment in the Philippines. As we all know, the process is faster and the only reason you need to prove is “irreconcilable differences”. Michael can do this because he had become a naturalized US citizen.
RECOGNITION OF DIVORCE ABROAD
Q: If Michael gets a divorce decree in the US, does he need to file a Petition for Foreign Divorce Recognition in the Philippines?
A: As a general rule, Philippine law does not recognize divorces obtained abroad. After Michael gets divorced, he is still married as far as Philippine law is concerned.
Q: After the divorce, what can Michael do to get the Philippines to recognize the divorce? In other words, can a foreigner file a foreign divorce recognition application?
A: Michael can file a Petition for Recognition of Foreign Judgment. Although this is really a foreign divorce recognition case, it is wrong to say that it is a petition under Article 26 of the Philippine Family Code. Section 26 applies only if the petitioner is a Filipino. Article 26 allows the Filipino spouse to revert to their single status after a divorce obtained abroad has enabled the foreign spouse to remarry.
If the petitioner is a foreigner, he can apply for recognition of his divorce as long as he can prove that the divorce was granted in accordance with his national law.