WHAT'S YOUR APPROACH OF LOGIC VS FACT!!!

[Naomi39]

Can my husband come for a visit while the sponsorship is in process? He still a PR.

 

[zardoz]

If he is a PR, and he is not going to have any problems with the residency obligation requirements on his return to Canada, he may make short visits. Normally recommended maximum stay of only a couple of weeks or so.

 

[wowsers]

This is the last post by me on this topic! Some elementary principles (as I recollect them) of the applicable law follow. Those principles may or may not be the same in Canada; but, to check that, Naomi39 or her husband need to consult a Canadian lawyer. A void marriage is one which has never been valid. It does not need a decree of annulment from a court of law, though such a decree may be available and can provide good evidence that the marriage never existed. The most relevant example for present purposes is where the parties have not participated in a valid marriage ceremony. A voidable marriage is valid until a court of law annuls the marriage. If such an annulment decree is granted the marriage is treated as having been void from the beginning. One ground for such an annulment is non-consummation. A divorce can only dissolve a valid marriage: if the marriage was void from the beginning, a divorce will have no effect. Those elementary principles are in the present case complicated by the fact that there are two legal jurisdictions involved: the law of Canada, and the law of the Democratic Republic of Congo. There appears to be a conflict between them, but since I am not a Canadian lawyer I am not going to venture an opinion about Canadian conflict of laws. It appears however that Canadian law does not recognize proxy marriages and if that is correct the first marriage of Naomi39's husband is likely to have been void from the beginning and provides no obstacle to the validity of his second marriage (to Naomi39). No decree by a court of law is required, the belated divorce is irrelevant, and there is no obstacle to the validity of the second marriage. If perchance the first marriage was not void from the beginning ( an issue on which advice from a Canadian lawyer concerning the conflict of law point is required) there is nevertheless a fallback position: since the husband and the first wife never met there is the possibility of obtaining a nullity decree from a court of law on the grounds of non-consummation. CIC has no jurisdiction to grant such a decree. However, Naomi39 needs a practical solution to her problem. She is in the last stages of her family class application and there will be a time limit imposed by the VO (which she needs to have extended). For practical purposes the non-consummation route is not a solution: that would require a court case which is likely to take months if not years at best. So the void marriage route is at present the only one likely to be of any practical use. I cannot see Naomi39 succeeding on her own: she will have to persuade the VO, who is unlikely to be a lawyer, that her husband's first marriage was void notwithstanding the absence of any decree from a court of law, that the divorce was irrelevant and that her marriage (ie the second marriage) was therefor valid. Can anyone envisage success in presenting this argument being achieved by Naomi39 without the participation of a Canadian lawyer? I cannot!

 

[zardoz]

Agreed... That is all.

 

[Naomi39]

Wowsers,

Thanks first of all for this valuable peace of information you just outline for me. Can I ask my husband to write a letter to CHC right now, explaining to Visa Post how is first marriage was never valid since he never consummated it? Yes my husband is already satisfied the residency requirements in order to apply for citizenship. He had already applied for it as we are talking. Which means he can come to visit me for a month?

 

[Rob_TO]

Can I ask my husband to write a letter to CHC right now, explaining to Visa Post how is first marriage was never valid since he never consummated it?

No. It has nothing to do with consummating it. The marriage would be void since it was done by proxy, which is not recognizable or valid in Canada which makes that first marriage invalid, like it never happened.

You seem to be missing the biggest piece of advise here, and that is to get professional help to prepare your response!!

 

[wowsers]

Dear Naomi 39. You have tempted me out of my self imposed silence! The letter you propose should be written by your husband would in my opinion not be correct or appropriate. By all means get him (or preferably a lawyer on his behalf) to write to the Visa Officer in Nairobi but in my opinion definitely not to say that that his first marriage was never valid because it was not consummated. If you read my last message again you will see that I explain that non-consummation only enables him to go to court to petition that the marriage be annulled. It is far too late to take that step now: you only have a short time to persuade the Visa Officer. to rule in your favour. If your husband writes, he should write that his first marriage was void because it was a marriage by proxy which Canada apparently does not recognize as a valid marriage: get him to copy the quotation from the guide set out in Rob_TO's post dated 20th September. But, really, you are going about this the wrong way. I am not a Canadian lawyer and you cannot rely on what I say as gospel (or at all). The sensible course is not to get your husband to write a letter on an issue which it appears you do not understand, but to get him to consult a Canadian lawyer and get the lawyer to write the letter. I am sorry that I cannot help you concerning the citizenship question you ask. That is outside the area of my knowledge. PS I have just read Rob_TO's most recent post. He puts it all succinctly and correctly. Get yourself a lawyer!

 

[Naomi39]

I Just talked to him. First thing he will do tomorrow morning is contacting a lawyer as Rob and Wowsers suggested to me. I really appreciate your advices.

 

[Naomi39]

Rob, Wowsers, Zadock and others...

My husband already contacted a lawyer but he said since the case is now at the end he can't do much let's wait and see their decision. But he also told y husband that Canada does not accept proxy marriage. But today his MP called him and tell him that she called Nairobi and they told him that they receieved the document we sent on september 18.2013 and they will review the file on October 30,2013. Any comment guys??????

 

[wowsers]

By 'can't do much' do you mean he will do something or that he will do nothing? If the latter, his response is very odd: he has over a month in which to write a letter on your behalf and he will not do anything? I am now very confused about what has happened. Your husband's MP has written, but what precisely has she written? I had the impression from your previous posts that she was attracted by the non-consummation line of argument, which I think will not get you anywhere. Has anyone written to the VO to argue that there was no first marriage at all because Canada does not recognize proxy marriages?

 

[Naomi39]

By 'can't do much' do you mean he will do something or that he will do nothing? If the latter, his response is very odd: he has over a month in which to write a letter on your behalf and he will not do anything? I am now very confused about what has happened. Your husband's MP has written, but what precisely has she written? I had the impression from your previous posts that she was attracted by the non-consummation line of argument, which I think will not get you anywhere. Has anyone written to the VO to argue that there was no first marriage at all because Canada does not recognize proxy marriages?

Well the lawyer my husband saw said he cannot do anything since the file is at the end. He went to meet another one today. Yes his MP sent my husband and email saying she called Nairobi VO, she was told that the file will be brought up for review on October 30. Here is another question Wowsers. On September 18, 2013 was the day that my hubby sent that divorce certificate. Wouldn't the officer processed our file on the same day they got that document? Why S/he put the BF'D on October again?

 

[wowsers]

Sorry, I do not know enough about the procedure to answer your question. My guess is that the VO knows there are difficult legal questions in issue and is taking advice, which gives me grounds for optimism. Good luck!

 

[Naomi39]

Thanks any anyway for your update.

 

[Amanda10]

Hey Naomi39,

I wish you all the best at the end of this month. I strongly believe that your husband will get his visa because Canada doesn't accept proxy marriages. Let's know the outcome after october 30, 2013.

 

[Naomi39]

Thanks Amanda10. I have a question for everybody who wish to help me. The final document was received before the visa officer drive to Decision Made and the final review will be October 30,2013. Here is my question: Will the VO grant or deny the application on that day? Please people comment on my question or sen me a link for a similar case. Thanks