“Dead” Wife Comes Back Alive. New Wife Cries: “What Now, My Love?”

by Emmanuel S. Tipon, Esq.

At the turn of the century, a California man went to Ilocos Norte, became enamored with a woman in her early 20s, courted her, and proposed marriage. “But aren’t you married?” she asked. “Yes, but I have not seen her for many years, she must be dead by now,” he replied. “You better talk to a lawyer,” she told him.

A lawyer filed with the Regional Trial Court of Ilocos Norte a Petition under Article 41 of the Family Code of the Philippines for a judgment declaring the man’s absentee spouse to be “presumptively dead”.

Article 41 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 has a well-founded belief that the absent spouse was already dead. . . 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 Court ruled that since the man’s spouse had been absent for more than six years without any information or knowledge of her whereabouts, which had led the husband to enter a well-founded belief that the absent spouse was already dead, the court granted the petition saying it would redound to the best interest of the husband, and declared that the man was now qualified to contract another marriage without prejudice to the effect of the re-appearance of the absent spouse.

(I was surprised to find that the well-written decision was penned by a judge who had been a close friend of mine although he has since joined our Creator.)

Thereafter, the man and the young woman married. They had a child. Years later the woman immigrated to the U.S. based on a petition filed by her husband, a U.S. citizen. She brought their child with her. They had another child in the U.S.

The woman applied for naturalization. The USCIS denied her application on the ground that she was not lawfully admitted for permanent residence because her husband’s prior marriage was not legally terminated at the time they got married.

The USCIS declared invalid the Declaration of presumption of death by the Philippine Court because according to USCIS it received information that her husband’s first wife was alive and residing in the U.S. Therefore, concluded the USCIS, at the time she became a permanent resident, she was not entitled to have that status because her husband remained married to his first wife, and his second marriage was therefore null and void.

What Now My Love?

Here’s our answer:

1. USCIS has no jurisdiction or authority to declare applicant’s marriage to her husband “invalid”. There is no law conferring jurisdiction or authority upon USCIS to declare marriages invalid. Consequently, the USCIS’s Decision is ultra vires and void.

2. Only a court has jurisdiction to declare applicant’s marriage to her husband “invalid”.  There must be an action for annulment and a judgment declaring such invalidity. No such action was filed.

3. A marriage can only be declared “invalid” in a direct proceeding challenging its validity, not in a collateral proceeding, such as in an application for naturalization.

4. Philippine law governs in this case. Applicant’s marriage to her husband was contracted in the Philippines. Applicant is a Philippine citizen. Her husband, although a U.S. citizen, was a resident of the Philippines at the time of their marriage. “The general rule is that the validity of a marriage is determined by the law of the place where it was contracted or celebrated, if valid there it will be held valid everywhere.” 55 CJS, Marriage § 5, p 673.

5. The Philippine court decision declaring the first wife of applicant’s husband as presumptively dead dissolved his marriage to his first wife. Such a decision is valid, binding, and final until it is set aside by a higher Philippine court. No higher Philippine court had set aside such decision.

6. Rules of international comity require that the United States and its agencies should respect the laws and the judicial decisions of foreign tribunals.

7. If the first wife who has been declared presumptively dead on petition of her husband reappears, the husband’s second marriage to applicant is automatically terminated by the recording of the affidavit of reappearance of the absent spouse with the court which declared her presumptively dead. Since the first wife had not filed an affidavit of reappearance, the husband’s second marriage to applicant has not been terminated.

8. Applicant’s husband’s second marriage with applicant is valid because there was a judicial declaration that the first wife was presumptively dead which dissolved the first marriage. Consequently, the remaining spouse (applicant’s husband) was permitted to contract a subsequent marriage that was valid.

9. The Family Code of the Philippines provides for void and voidable marriages. But the code does not include as void or voidable a second marriage by a person whose first spouse is declared presumptively dead and whose first wife reappears. Consequently, the USCIS acted contrary to law when it “declared invalid” the applicant’s marriage to her husband whose first wife was declared presumptively dead by the Philippine court.

10. Applicant’s husband’s second marriage with applicant is valid until it is “terminated”. Consequently, all acts of applicant and her husband during their marriage are valid until their marriage is terminated. Therefore, the filing of a form I-130 petition by applicant’s husband on her behalf is valid because it was made during their marriage. Where a person whose spouse has absented himself or herself for a specified period subsequently marries another person, “[t]he former marriage in these cases is suspended and without binding effect until the subsequent marriage is annulled.”  55 CJS, Marriage § 18.

Art. 43 of the Family Code provides that the termination of the subsequent marriage shall produce the following effects, among others:  “The children of the subsequent marriage conceived prior to its termination shall be considered legitimate.”

If the children are “legitimate,” that indicates that the second marriage of the husband whose wife was declared presumptively dead but reappears is “valid” until it is “terminated” which had not yet occurred.

Consequently, the acts of Applicant and her husband during their “valid” marriage are likewise valid. This includes the filing of a Form I-130 Petition for Alien Relative by Applicant’s husband on behalf of Applicant during their marriage. Applicant was lawfully admitted for permanent residence. Therefore, Applicant is eligible for naturalization.

COMMENT: In the 1940 movie, “The Way of All Flesh,” which I saw when I was in high school, a banker entrusted with a large sum of money was robbed. He was ashamed to return home and disappeared. Many years later, he returned to his hometown. On Christmas Eve he went to his home, peered into the window and saw his wife and another man obviously his wife’s new husband and young children celebrating. Did he barge in and proclaim “I am your husband. Your marriage is void.”?  No, he just walked away into the cold and dreary night. What would you have done?

ATTY. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon.  They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Website: https://www.tiponlaw.com.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.)

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