YOU CAN’T DECLARE YOUR OWN MARRIAGE VALID OR INVALID

By Michael J. Gurfinkel, Esq.

There are many immigration benefits that can be obtained through marriage. For example, if a person marries a U.S. citizen (or a green card holder), he or she can be petitioned by that spouse. Similarly, if a person spouse’s is under petition (such as by an employer, parent, brother, sister, etc.) the “derivative spouse” could also be included for a green card.

However, in order for a person to obtain immigration benefits through marriage, that marriage must be valid in accordance with the laws where the marriage took place. Therefore, if a person got married in the Philippines, that marriage must be in accordance with Philippine law. If they got married in the U.S., the marriage must be in accordance with the laws of the state where the marriage took place. Similarly, if you were married in the Philippines, that marriage would be recognized in the U.S.

Those laws governing the validity and/or invalidity of marriages must be followed. And CIS and the Embassies have access to and know those “local” laws. Still, there are so many people who decide to “write their own laws” and, in effect, appoint themselves as judge over their own marriage and, without regard to actual laws, either decree themselves married or unmarried.

Here are some of the more common myths, misconceptions, or “non-existent” laws that people follow, and fool themselves into thinking that they have a valid marriage, or that a previous marriage was terminated or is not valid:

1. Secret marriages are not valid

This is untrue. If a person went through a ceremony, before a solemnizing officer (priest, mayor, judge, etc) and said “I do”, then the marriage is probably valid. Just because somebody “assured” you that your marriage contract would not be recorded does not affect the ultimate validity of that marriage. Therefore, if you had a secret marriage, you are probably legally married. If you plan to immigrate as “single” under a parent’s petition, you may not be eligible. Or, if you are planning to marry a U.S. citizen, but are still secretly married to your first spouse, you would need to terminate the first marriage, and not rely on a “secret marriage” as somehow not being valid.

2. A lengthy separation automatically results in a termination of a marriage

Again, this is untrue. If you went through a ceremony with your spouse in accordance with the applicable marriage laws, then you are considered married, even if your spouse abandons you before the wedding night. You would still need to get a valid court order declaring the marriage terminated (i.e. through annulment, divorce, etc.). You cannot appoint yourself as judge of your case and decree yourself “unmarried”.

3. Your original spouse has remarried, thereby “proving” that your marriage to that spouse must have been terminated.

Even if a prior spouse remarried, you would still need a final court decree terminating your marriage to him or her. Maybe your first spouse was able to remarry by concealing his or her marriage to you, but they never really, actually obtained a court decree. You cannot “presume” that your spouse took care of the annulment or divorce proceeding without your knowledge, and rely on that as “proof” that your marriage has been dissolved. Make sure there was a court decree so declaring the marriage terminated.

4. I have not seen my spouse in 7 years, so I am automatically “single”.

Again, this is a myth, whereby people think that because their spouses disappeared for more than 7 years, their marriages have been automatically terminated and they are already free to marry. In order for a person to avail of this particular law, they still need to go to court that will decree that the marriage is considered terminated based on “presumption of death”. You are not the judge over your own case, and cannot declare yourself as unmarried.

I have seen so many situations where persons could have benefited from their marriages, but, because they relied on various myths, misconceptions, and rumors, they did not legally terminate their original marriages and they were actually never legally married to those later spouses who could have bestowed immigration benefits.

That is why it is so important that if you had ever said “I do” to anyone, you should seek the advice of a reputable attorney, who can evaluate your situation, and determine your true marital status in accordance with the actual laws, as oppose to myths and misconceptions.