So close, and now this... please please please help

[ufa]

I need help. I'm not sure where to go for it.

I married my husband in October 2010, in Toronto, ON. He then went back to his home country, and we've been working on the sponsorship application ever since.

He called me in tears today. He was supposed to send his half of the application to me today, but as he was finishing his last letter last night he started to wonder about his ex. As far as he could remember, they had never been married. How you don't remember being married still confuses me a bit, but apparently it was all a big mess of a day where his parents were forcing him to marry (sign the form) and he didn't want to. He couldn't remember whether he had signed it or not before running away. So, he searched the church records last night and found out that in fact he did sign the paper before running away, and later his parents, or his ex's parents sent in the form. He's completely distraught, I need to keep calling him today to make sure he doesn't do anything rash.

If we can get his 'unknown' marriage annulled will it save our marriage? If not, I imagine we will have to marry again... but is that a simple process? How do I go about this in a legal manner?

Can anyone recommend a good lawyer here that can help with our current marriage? Are there other ways to save our marriage?

 

[canadianwoman]

What is your husband's home country? And his ethnic background? And how old was he when his parents forced him to get married?

 

[RobsLuv]

Yeah, I agree. A lot depends on whether or not it was a "legal" marriage. If it was, he has to get divorced, or his marriage to you is not legal and cannot be used as grounds for sponsorship. Could you guys qualify as common-law partners by having co-habitated for at least one continuous year - even though he has now gone back home? If so, you could still submit the application as c/l, and work out the marriage part later.

If you did live together for awhile, but not for a year, is it possible for you to go to his home country to live with him there for long enough to establish the qualification for common-law? (Not knowing yet where he's from - but I suspect NZ or Australia based on the visa office in your profile, is it possible for him to return to Canada to complete the common-law qualification with you here? Or split the difference?)

 

[bonbon9]

Since he said he looked through church records, it sounds like he was (weirdly) married in church, but we need to know if he was married by law too! It sounds really strange.. Is there any way he can do a record search - kinda like the record of no impediment that some countries ask for as a requirement before marriage - to verify if he was indeed married by law? If it was only a church wedding (which is totally strange as I know church weddings usually request a legal marriage cert. to proceed!) then it won't invalidate your marriage.

Good luck!

 

[CharlieD10]

Since he said he looked through church records, it sounds like he was (weirdly) married in church, but we need to know if he was married by law too! It sounds really strange.. Is there any way he can do a record search - kinda like the record of no impediment that some countries ask for as a requirement before marriage - to verify if he was indeed married by law? If it was only a church wedding (which is totally strange as I know church weddings usually request a legal marriage cert. to proceed!) then it won't invalidate your marriage.

Good luck!

It is possible that even if he was married in the church, he was not married by law. In Jamaica, we had to get a minister's license to permit the minister to marry us, but we were not legally married until he had submitted the completed marriage register copy to the Registrar General's Department. Without that submission to the RGD, our marriage would not be legally recognised in Jamaica or anywhere else, but still be recognised in the church.

It would be good for him to do a records search in whatever government agency or archives is responsible for births, deaths and marriages, in order to verify that he is legally married as well. From there, you work out if he needs a divorce or an annulment.

Good luck!

 

[Siouxie]

If he was "married" in Australia, the 1961 Marriage Act http://www.comlaw.gov.au/Details/C2010C00189/Html/Text#param33 states:

23B Grounds on which marriages are void

(1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

(a) either of the parties is, at the time of the marriage, lawfully married to some other person;

(b) the parties are within a prohibited relationship;

(c) by reason of section 48 the marriage is not a valid marriage;

(d) the consent of either of the parties is not a real consent because:

(i) it was obtained by duress or fraud;

(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e) either of the parties is not of marriageable age;

In which case there would be grounds for an annulment (if he can prove it)

How old was he when this "marriage" took place? If he was under the legal age of majority (i.e. a minor) he may also be able to get it annuled on those grounds.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Separation+and+Divorce/Nullity/

More information here: http://www.familycourt.gov.au/wps/wcm/resources/file/eb33514b0877ace/FSAppNullity_0309V1.pdf

He should definitely go to see a lawyer before deciding which course to take. This lawyer makes an interesting point; Duress does not necessarily require violence. Threats or even controlling parental coercion can be enough, but a party's fear must be reasonably based. http://www.osullivandavies.com.au/newsletters.asp?docID=5481

He can do a search of whether the marriage was registered by going to one of the links provided here: http://australia.gov.au/topics/law-and-justice/births-deaths-and-marriages-registries

What a horrible thing to have had to go through.

 

[RobsLuv]

Excellent response, Siouxie!! You rock!

 

[ufa]

Thanks for your help and comments.

My husband is from Samoa (that's the flag in my profile pic). Everything is fishy there. He had found the marriage in the government books, but it didn't have the date of marriage. I have a feeling it did not record the details of witnesses or who performed the marriage either. At first we were not concerned because it did not seem legitimate, as it also was not in my husbands legal name (perhaps why it was not initially found prior to our marriage when my husband requested his lawyer to do the same search). Anyway, when he told me about finding that, about a month ago, I was under the impression it only had his nickname and not even his last name. I was wrong in that it is in his nickname and legal last name. He was still concerned last night when he wanted to know for sure, and finally found out all the details within the church's records - where there is a record of his signature and the actual date. He was 20 at the time (so definitely not a minor). It was over 10 years ago. It wasn't registered until a couple years after that, submitted by his ex we presume. She's very conniving.

I'm also hoping he'll be able to get the marriage annulled because of the coercion. There are children involved too - which will probably make an annulment more difficult... although I don't think he's ever had confirmation that they are actually his, and after the 'marriage' he never lived with his ex and the relationship was on and off for several years. Argh. what a mess.

He's talking to a lawyer today so I'll know more soon. I plan to get some legal advice tomorrow. As far as I can tell - even if it is annulled, we will have needed the annulment papers when we got our marriage license in Ontario, so would not having them then (even though we didn't know about the marriage) be enough grounds to have our marriage invalidated? His lawyer has been talking about getting divorce papers with an earlier date - possibly corresponding to when the custody agreement for the kids was arranged... I imagine this would have the same effect of invalidating our marriage because it was not put forward when we got the marriage license.

 

[mayasita]

Wow... I do hope there is some sort of easy workaround for you... Are marriages in Samoa automatically recognized by Canadian govt? That's the only thing I can think to add?

The silver lining to this cloud is that you didn't discover all this out after you applied and have it become a reason for decline or even banning from applying again... It might take some time now, but it's fixable

Best of luck, I do feel for you

 

[Siouxie]

Wow, what a mess! After reading your post I had a look at the Samoa Marriage Act (http://www.paclii.org/ws/legis/consol_act/mo1961138/index.html) and then the Birth, Death, Marriage Registration Act (http://www.paclii.org/ws/legis/num_act/bdamra2002383/) and the marriage should have been registered within 14 days.

As there are children involved, unless he can persuade his "ex" to agree to paternity testing to ascertain whether they are actually his or not, I think his best bet would be to file for divorce on the grounds that they have not lived together for x years. http://www.paclii.org//cgi-bin/disp.pl/ws/legis/consol_act1996/damco1961335/damco1961335.html?query=Divorce - if he can get it backdated, so much the better!

(I just read some of the divorce act for Samoa and it makes quite fascinating reading - for example, you can get a divorce if your husband has been a drunkard for 3 years!)

You are correct in thinking that if he was still legally married it would invalidate your marriage. It would be classified as a bigamous marriage (and there are penalties involved). http://laws.justice.gc.ca/eng/C-46/FramesView.html section 290.

Whilst the Ontario Marriage Act http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m03_e.htm states that proof of divorce must be given at the time of application for a marriage licence and if obtained overseas, application has been made to the Minister -

Where dissolution, etc., outside Canada

(3) Subject to subsection (6), no issuer shall issue a licence to a person whose previous marriage has been dissolved or annulled elsewhere than in Canada, unless the authorization in writing of the Minister is obtained upon the deposit of such material as the Minister may require. R.S.O. 1990, c. M.3, s. 8 (3).


it does say later on that:

Marriages solemnized in good faith

31. If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. R.S.O. 1990, c. M.3, s. 31; 2005, c. 5, s. 39 (5).

So... theoretically, I believe if his divorce is dated prior to your marriage (therefore not legally disqualifying the marriage) it may be possible to have your marriage recognised despite the fact that you didn't obtain consent from the Ministry due to his overseas divorce, providing that you live together as a married couple.

You absolutely need to see a lawyer to obtain his opinion.

(If it were me, I would get the divorce backdated, plead ignorance and live together)

sigh.........

Edit: Samoan marriages are recognised by Canada

 

[canadianwoman]

What a mess.
My suggestion is for him to get divorced as soon as possible. Don't bother trying to back date it. Then get remarried. Then send in your application.

I'm afraid if you try to back date the divorce, or manage to get his first marriage annulled, the visa officer will just refuse his application and you will have to appeal. You may win the appeal, but it will take a long time and will require a lot of expensive lawyer time. Better to get everything sorted as well as possible now.

 

[ufa]

Wow, Siouxie - thank you so much for the information! I will start reading the Samoan legislature!

That first point - about the marriage needing to be registered within 14 days is good news, since there were 3 years (!) between the date of his first 'marriage' and when it was registered! Not to mention the lack of the date of marriage in the government records. So sketchy.

I went to a Family Law Information Center today, to confirm my fears that i will need to get our marriage annulled and then remarry... but even that might look bad to immigration so they also were able to recommend a local immigration lawyer whom I'll call tomorrow. meanwhile, I think my husband is still waiting to see his lawyer.

I'm still hoping that there may be some way we won't have to get an annulment, and it sounds like the only way to do that would be if the first marriage is completely illegitamate to the point where the record is just thrown out (and so no annulment of the 'first marriage' is necessary). Since, as you say, even if he gets it annulled, that annulment would have needed to be recognized in Canada prior to our marriage.

To be honest, we were so close to having everything sorted out, that i'm not surprised that something else came crashing down. And, as my mother puts it: it's just paper work. She neglects the money and time though. Trying hard to remember I still have what counts: a devoted husband and an eventual future together.

Thanks a ton for your support!

 

[ufa]

From reviewing the legislation, and the Canadian Law, sounds like best case scenario is that he gets the first marriage declared VOID in accordance with the rule stating

A marriage shall be void at all times, whether or not a decree for nullity has been granted, where ... whether by reason of duress or mistake or insanity or otherwise, there was at the time of the marriage an absence of consent by either party to marriage to the other party;

and then our marriage is valid.... will probably be tough to prove but the absence of solemnization date and proper first name in the registry may help.... I'm not optimistic.

Worst case scenario - he's charged with bigamy and is sentenced to the full 5 years. :'(

I could really use my husband right now.