Same-sex partner must be free to marry

The United States Citizenship and Immigration Services and the US Department of State released new policy guidance on how to deal with petitions by same sex partners. These were released a few weeks after the US Supreme Court ruled (US v Windsor) in favor of same sex marriages.

When it comes to family-based visa petitions, the policy guide stresses that whatever rule applies to opposite sex partners will likewise apply to the same sex partners.

Considering that this is a recent development in the petitioning process, there are still several issues that need resolution. Of particular concern for most same sex petitioners is the presence of a prior undissolved marriage of a partner who is a beneficiary or the applicant for a fiancé visa. What if the same sex couple has been in a long time relationship but one party is still validly married with children?

In the television series, “My Husband’s Lover,” the characters Eric and Vincent have a romantic relationship despite the fact that Vincent is validly married. What if Eric is really an American citizen and wants to take Vincent to the States to live as a same-sex couple? Will Vincent be able to get the immigrant visa? How will the marriage of Vincent and Lally be dissolved in the Philippines where divorce is not recognized?

Filing fiancé petitions

Those who recently immigrated to the US and are permanent residents or green card holders may not file fiancé visas for their same sex partners. Only US citizens may file for fiancé visas.

In cases where a US citizen decides to file a fiancé visa for a partner, the following documents are required: proof of US  citizenship of the petitioner; proof that the petitioner and the foreign national have met in person within the last two years; original statements from both petitioner and beneficiary explaining intent to marry within 90 days of entry into the US; evidence of relationship (bona fides) and evidence that any prior marriage has been legally terminated for both parties.

Evidence of the relationship may not be difficult to prove especially for long-term relationships. For those who have prior marriages, it is important for them to find ways to dissolve the marriage. There is no divorce law in the Philippines but this does not mean that no marriages are dissolved. The Philippine courts accept petitions for annulment of marriages. If granted, it will have the effect of a terminated marriage. Under Article 36 of the Philippines’ Family Code, a marriage may be annulled due to lack of parental consent, force or intimidation, psychological incapacity, or fraud and physical incapacity to enter the married state.

In the example given, Vincent may file for an annulment and when and if it is granted, then, Eric, his lover, may file a fiancé visa for him.

Only for the affluent?

Unlike in the State of California, where there is a “no fault divorce,” the Philippines requires petitioners to submit proof of the existence of the grounds of annulment such as fraud, psychological and physical incapacity. If the other party decides to contest the ground for annulment or there is lack of convincing evidence, the annulment will not be issued by the court.

For those with visitor visas or other nonimmigrant visas, they may have an alternative to dissolve their marriages in the US. They may file for dissolution of marriage in a State where the courts accept jurisdiction to dissolve foreign marriages.  For example, Vincent can use his visitor’s visa (assuming he has one) to enter the US, proceed to Las Vegas to establish a few weeks of residency and then file for a Nevada divorce.

Filing for annulment in Philippine courts or filing for divorce abroad may be options that may be taken to dissolve a marriage so that the US citizen-fiancé may file a petition for his partner who was previously married. But these options are not available generally to all who wants to file for dissolution of their marriages. In the first place, it is expensive to obtain an annulment in the Philippines. Secondly, only a very limited number of those who want to file for divorce have visitor visas to enable them to travel to the US. Considering these realities, filing a fiancé visa petition either in a same sex or opposite sex relationship is difficult if the person being petitioned has a prior marriage and still resides in the Philippines.

The Philippine Constitution protects the sanctity of family life. For this reason, it may be legally impossible at this time in the Philippines to pass a divorce law, much more change the definition of marriage.  For same-sex partners who want to petition their partners with prior marriages, dealing with these realities and overcoming the barriers to petitioning remains a considerable challenge.

(Tancinco may be reached at [email protected] or at 721 1963 or visit her website at www.tancinco.com)