“Yes, my fiancée is still married, but he ran out on her and she hasn’t heard from him in 14 years. Can we marry?” At Down Under Visa we hear this story all the time. Most of the time it’s probably very true too, because the Philippines has its fair share of irresponsible men. It happens all too commonly with OFW’s (Overseas Filipino Workers) too, when the husband or the wife goes to Dubai and never comes back again.

Can she marry me when she’s still legally married?

Short answer? NO! Long answer? HELL, NO!!

I remember seeing a marriage license application from India many years ago.

Questions:

1. Married or unmarried? Yes/No
2. If married, state how many wives are still living?

The Philippines is not India, and whilst I’m not sure what the Muslims here are allowed to do under Sharia Law, if your Filipina lady married under the regular laws of the Philippines, ie under the Family Code of the Philippines, then she may only have one husband at a time. If she’s still legally married, she can’t marry you! If she married Jhun Jhun from Mt Tambay in 1983, she’s still married to him.

And Australia is similarly conservative when it comes to the topic of polygamy. Your future wife may only have one husband at a time. To get an Australian partner visa, she needs to be legally free to marry before applying for a partner visa based on a present or prospective marriage. It applies to you too, ie. if you married Betty Thumpkins in Oodnadatta in 1967 and she’s alive-and-well and you didn’t get a divorce, she’s still your blushing bride!

Being married twice at the same time, this is called bigamy and it’s a crime in Australia as well as in Philippines.

Legal solutions for your still-married Filipina fiancée?

There is no legal no-fault divorce in the Philippines. No idea what Mr Duterte is planning, but regardless of this there have been quite a few bills go to congress to introduce easy divorces over the years yet they’ve all been overturned. So I wouldn’t hold your breath.

The main option is to get an annulment. I won’t go into great detail right now, because I’ve written about this extensively on the BLOG, eg HERE. This is the common pathway to end a marriage. It takes time, costs money, and the process is often frustrating. But most of the time they are successful. I can’t actually think of any time where a couple had one knocked back by the judge.

The other solution which is used on occasions is the presumptive death option. If the applicant has reasonable grounds to believe that her ex-husband is actually dead, and no one has seen or heard from him for 4 years, this could be an option. You just need to be aware that if he suddenly reappears and tells the court he’s still alive, the subsequent marriage may be voided.

There are various grounds by which a marriage may be declared null and void, including: marrying blood relatives, underage marriages, bigamous and polygamous marriages, and (would you believe) where one party killed their own spouse or the spouse of the other party!

Can’t wait for the first prospective client to come to me and say “I just killed my lady’s husband. Jeff, can you get her a visa???” I think they might have bigger problems to deal with!

What about a de facto relationship?

I’ve also written a lot of articles about de facto relationships, eg THIS one. You MAY remain married and apply successfully for an Australian partner visa based on a de facto relationship, and this may well save you from the miseries of going through an annulment. This is most definitely an option, and one which plenty of applicants choose. And we have a lot of experience in this area. Just be aware that it requires more evidence and documentation that a partner visa based on a marriage takes, and you don’t have a de facto relationship just because you firmly believe that you are in one.

That means you need to start living together, which you can do here in Philippines or over time through a series of tourist visas to Australia. Just don’t expect we can get you a 1 year tourist visa so you can do this, as that’s not what tourist visas are for. It will definitely take some work and some patience, and you will benefit enormously from some professional guidance. Ignore guidance and try to bluff your way through and it will end badly, though……as will any Australian visa application.