“PRESUMPTIVE DEATH” ANNULMENT COULD RESULT IN PRESUMPTIVE DENIAL OF VISA

By: Michael J. Gurfinkel, Esq.

Dear Attorney Gurfinkel:

            I was married several years ago, but my husband went to work abroad, and we really haven’t communicated that much since then. 

            I met and fell in love with an American citizen in the Philippines, and we want to  get married.  I know that I must get my first marriage annulled before I can marry my American boyfriend, and some of my friends are suggesting that I get an annulment based on “presumptive death” of my husband.  Do you think it is a good idea to get a presumptive death annulment, and will I encounter problems at the U.S. Embassy once I marry my boyfriend and am petitioned for an immigrant visa?

                                                                                                Very truly yours,
                                                                                                AS

Dear AS:

            A presumptive death annulment is where one spouse effectively “disappears,” and the spouse left behind does not have any contact nor has any idea of the whereabouts of that missing spouse for at least 4 years.  That surviving spouse must go to court and obtain an annulment based on the presumption that the missing spouse is “dead.”  However, the U.S. Embassy is concerned or suspicious about presumptive death annulments, because in many cases, the spouse who obtained that annulment knows very well that the “dearly departed” spouse is very much alive. Therefore, the supposed legal basis for the annulment is untrue.  In such a case, the presumptive death annulment was improperly obtained, and the U.S. Embassy may not give legal recognition to that annulment for purposes of issuing a U.S. visa based on a subsequent marriage to a different spouse. 

            I had one case where a Filipina was “caught” by the U.S. Embassy with a bogus presumptive death annulment.  Like you, she met a U.S. citizen, whom she wanted to marry.  She then went to court and obtained an annulment based on the presumptive death of her first husband, whom she had supposedly not seen in several years.

            The problem was, that with a court decree declaring the husband “dead,”   some relatives thought that this might entitle them to some form of inheritance.  Other relatives, knowing that the first husband was very much alive, filed papers in court (including  a currently dated, notarized affidavit by the “deceased,” and pictures of him), challenging the presumptive death annulment.

            The Embassy was somehow able to obtain information and documentation that the deceased first husband was alive.  (They may have obtained records from the courthouse, the relatives who challenged the annulment may have written a letter to the Embassy, along with a copy of the affidavits, or the Embassy may have contacted relatives of the “deceased” spouse).  Accordingly, the Embassy would not issue the visa to that Filipina based on her marriage to her second husband, because she was still married to the first husband, as he was still alive.

            Therefore, if you truly know that your current spouse is alive, you should NOT obtain an annulment based on presumptive death, as the Embassy will investigate.

             Instead, if you want to terminate your marriage, you should do so based on valid, proper, legal grounds, so that you will not run into problems if your intention is to marry another spouse (for love) and obtain U.S. immigration benefits through that second marriage.                         

WEBSITE:      www.gurfinkel.com

                 Four offices to serve you:  PHILIPPINES: 894-0258 or 894-0239; LOS ANGELES;  SAN FRANCISCO; NEW YORK : TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)