She's still married! Problems for Australian Filipina couples

So you met the most wonderful Filipina lady on the dating site? Or you met her in person? Yes, she's still legally married, but he left her years ago. She hasn't heard from him for the last 7 years, and he never supports the kids. And you want to marry her this year, and want Down Under Visa to get an Australian partner visa for her. Easy?

No!

There are plenty of things where I can say that yes I understand why our clients don't understand how some things work. Philippines has it's own culture and it's own unique ways of doing certain things. However marriage is marriage, and bigamy is a crime in most countries.

Migrating to Australia?

Prospective Marriage Visa: Must be legally free to marry

Partner Visa: Must be married to the applicant, or in an established de facto relationship for 12 months or more (ie. if you've just met and planning to marry this year, then this doesn't apply for you either).

What are your options? There are two!

Establish a de facto relationship

Not an easy option, and it will involve you setting up a household together and leading a shared-life for 12 months or more. Please CLICK HERE to read more about this option.

Get an annulment for the applicant's marriage

For most of you, this will be the only realistic option.

There is no "no-fault divorce" in Philippines. In Australia? Very simple. There is only one grounds for divorce, and that is incompatibility, and the evidence of this is being separated for 12 months. In Philippines? Not so simple.

A marriage is a legally-binding contract in Philippines, as it is in Australia. To end a marriage in the Philippines, that contract needs to be declared invalid (ie. annulled). The legal loophole is to say that the contract was invalid from the start, in the same way as you can declare a contract invalid in Australia if one party was not in a sound position to enter into the contract at the beginning. Annulment of a marriage works the same way.

And this is how:

The court needs to see believable evidence that one party was psychologically incapable of understanding and fulfilling marital obligations. And it's the job of the attorney to establish and present the case. It involves numerous hearings, witnesses and a report from a psychologist that proves that the psychological incapacity exists.

And understand that the Family Code of the Philippines states the following in Article 1: "Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution…."

Doesn't sound like an Act that treats marriage like a throw-away, does it? Not at all. The court will deny the application if it doesn't stick. It's by no means a formality like it is in Australia. So expect it will take some time. 12 months is fairly normal.

If the other party to the marriage objects and wants to hold onto the marriage, then settle in for a long haul. However if in most cases they're in agreement, less hassles. In most cases the other party will be grateful that someone else is paying for it, and will welcome the opportunity to see it all done for free.

So if she is really the lady for you and you want to stick it out, then get started ASAP! Yes, in most cases we can get a tourist visa or two for her during the waiting time, if she doesn't kick-start the process it won't happen by itself. Tell her to get on with it, and don't waste time. And keep yourself in the background! If you start talking to the attorney, chances are the costs will go up due to the appeal of an Aussie wallet! Stay out of it! And good luck to the both of you!