How is the new Civil Marriage Law different from the old one?
The new law regulates situations that the previous law did not contemplate, such as the possibility of divorcing and remarrying . Although in the old law divorce was regulated, it did not put an end to the marriage (since it did not dissolve the bond) and therefore did not allow the divorced to remarry.
A new figure was created called economic compensation, to which the spouse is entitled who during the marriage did not work for remuneration, or worked less than he could and wanted, for dedicating himself to the care of the children or to the common household chores. This compensation can be requested in cases of divorce or nullity of the marriage, it can be agreed by the couple and authorized by the judge or, in the absence of agreement, it can be determined by the judge, who to set the amount must take into account, Among other aspects: the duration of the marriage and life together of the spouses; the financial situation of both; the age, health status, pension situation and the possibilities of re-entering the labor market of the weaker spouse.
Economic compensation can be paid by handing over a sum of money (one or more installments), shares or other assets, or by establishing usufruct, use or habitation rights over assets owned by the debtor spouse.
This law also modifies the requirements to marry: it increases the age at which people acquire the capacity to marry, raising it to 16 years of age, but with the authorization of their parents and in their absence, in the manner determined by law.
Another innovation is that it is no longer necessary to marry first in the Civil Registry and then by the Church, because marriages celebrated before religious entities that enjoy legal status under public law (churches) will have the same effects as civil marriage, provided that they comply with the legal requirements, among which are the inscription in the Civil Registry of the act granted by the religious entity and the ratification of the consent granted in the religious headquarters, within a period of eight days from the day of the celebration of marriage. If these requirements are not met, the religious marriage will not produce any legal effect, that is, it will not be valid from the civil point of view, but will only have value for the Church as a sacrament.
How is a marriage legally terminated under the new law?
For four causes:
The natural death of one of the spouses.
The presumed death of one of the spouses (a person who has been missing for so long that they are thought to be dead). The presumed death must be declared by a judge within the time limits established by law. (1)
By final judgment of nullity: it is declared that the marriage never existed because the requirements established by law were not met.
By final judgment of divorce: it means that there was a marriage, but it was terminated.
Both annulment and divorce are initiated by means of a lawsuit that begins a trial, which is processed before theFamily Courts .
How did you end a marriage with the old law?
– It ended with the first three causes mentioned above:
– The natural death of one of the spouses.
– The presumed death of one of the spouses.
– By final judgment of nullity.
The new law eliminates the incompetence of the Civil Registry Officer as grounds for the nullity of the marriage,causal that contemplated the previous law and that allowed to annul a marriage proving that it had not been celebrated before the Official of the corresponding Civil Registry. However, marriage annulment trials already initiated at the time the new Civil Marriage Law came into force (November 17, 2004) may continue to be processed until their conclusion.
With the new law, can the nullity be requested?
Yes, as long as the marriage was celebrated under very specific circumstances , such as:
– If one of the parties, at the time of marriage, was under 16 years of age.
– If the marriage was not celebrated before two able witnesses.
– If any of the parties at the time of getting married was married to another person.
– If the spouses have a certain degree of kinship with each other, such as if they are brothers, or mother and son.
The grounds for nullity are indicated in the new Civil Marriage Law .
What are the grounds for requesting a divorce?
There are two groups of causes:
1. The cessation of coexistence: That is, the spouses do not live together. In this case the divorce can be requested by both of them by mutual agreement, or only by one of them.
Both spouses can jointly request a divorce. For this there must beat least one year after the end of life as a couple, which must be proven in court. If the marriage was celebrated after the entry into force of the new Civil Marriage Law, the cessation of coexistence must be accredited with the limitations indicated in the aforementioned law, which do not apply to marriages celebrated before it. The parties must accompany their claim with an agreement that regulates their mutual relations and with respect to their children and property.
Only one of the spouses can requestdivorce, without the agreement of the other. For this, at least three years must have elapsed since the cessation of cohabitation as a couple, which must be proven in the trial. If the marriage was celebrated after the entry into force of the new Civil Marriage Law, the cessation of coexistence must be accredited with the limitations indicated in the aforementioned law, which do not apply to marriages celebrated before it. Regarding the mutual relations of the spouses, their children and property, will be regulated in the trial. In these cases, the judge can deny the divorce if the spouse who requests it breached his / her maintenance obligation, during the cessation of coexistence.
2. Behaviors that seriously infringe the duties and obligations of marriage, or the duties and obligations that one has with respect to the children, which make life together intolerable . For example:
– Serious physical or psychological abuse against the spouse or children.
– Attack on the life of the spouse or children.
– Serious and repeated breach of the duties of coexistence, relief and fidelity. For example, the repeated abandonment of the common home.
– Homosexual behavior of one of the spouses.
– Alcoholism or drug addiction that seriously prevents a harmonious coexistence between the spouses or between them and their children.
In the case of this cause, the divorce can be requested by the affected spouse without having to wait any time.
Do divorce and annulment have to be sponsored (processed) by a lawyer?
Yes, in these trials a lawyer is always needed to sue and appear before the Family Courts, unless the judge makes an exception for well-founded reasons (article 18, Law No. 19,968).
How long does the divorce or annulment procedure take?
Law No. 19.968 that creates Family Courts establishes the procedure applicable to annulment and divorce actions, and orders the judge to adopt the necessary measures to bring the trial to term as quickly as possible. In the same way, said law orders to summon a preparatory hearing in the shortest possible time. However, the length of time these court proceedings may take is variable and will depend on factors such as the court’s workload and how quickly it finds and serves the defendant. It will also depend on the issues discussed at the trial; For example, if both parties request a divorce by mutual agreement, they must include a complete and sufficient agreement that regulates their mutual relationships and those related to their children, which, if approved by the judge, could reduce the processing time of the process .
The elimination of the procedure of the consultation before the Court of Appeals, previously mandatory, also benefits a faster conclusion of the procedure.
Is legal separation the same as divorce or annulment?
No. Unlike divorce and annulment, legal separation does not end the marriage. It can be sued by one of the spouses for the fault of the other, in the cases provided by law and it can also be requested when life together has ceased, in order to regulate mutual relations and with respect to their children, without end the marriage.
How is the cessation of coexistence verified before the Justice?
Marriages celebrated after November 17, 2004, must prove the effective cessation of coexistence through certain instruments, such as:
– Public deed or certificate issued and notarized before a notary public where the term of coexistence is recorded.
– Act issued before the Civil Registry Officer in which the same record is left.
– Copy of a court-approved transaction, for example, in which the parties regulate the payment of alimony for the benefit of one of the spouses or children.
Why is a “mutual agreement” divorce better?
Because it is the same parties, and not a third party (the judge) that regulate their mutual relationships, those relating to their children and their property. The judge will approve the agreement as long as it meets the requirements established by law. Also, unlike a unilateral divorce, it can be requested after one year of the end of life as a couple.
After getting divorced or annulled, is it possible to remarry?
Yes. To remarry the person has to be divorced or annulled. That is to say, there must be an enforceable sentence from a judge, whether of nullity or divorce.
The sentence must be subregistered outside of the marriage registration in the Civil Registry. Only after this under-registration is verified, the spouses will acquire the marital status of divorced or single, depending on the case, being able to remarry.
However, there are certain steps that must be met by those who wish to marry, including:
– A woman who has been divorced or her marriage has been declared null and void and is pregnant cannot remarry before giving birth. If there are no signs of pregnancy, you must wait 270 days after the dissolution or declaration of nullity of the marriage to remarry, unless authorized by the court, in which case you must prove that there is no pregnancy. This is intended to avoid parental confusion.
– Whoever has children from a previous marriage under their parental authority or under their guardianship or curatorship must make a solemn inventory of the assets that are being administered and belong to them as heirs of their deceased spouse or with any other title and give to the children, for these effects, a special healer.
Where do I turn if I can’t afford a lawyer?
You must go to the Judicial Assistance Corporation to request free legal assistance.
Does the financial compensation decreed in favor of one of the spouses constitute income? No, that sum of money does not constitute income for legal purposes.
What happens to the assets of the marriage, after the divorce or nullity is judicially decreed?
With the end of the marriage, the property regime that existed between the spouses (conjugal partnership, separation of property or participation in the joint property) ends . The way in which the assets will be distributed will depend on the rules of each regime.
What about the children of the marriage that is divorced or annulled?
The quality of a child is not lost due to the declaration of divorce or nullity of the parents. Parents fully maintain their obligations and rights with respect to their children. The family judge must regulate in the respective sentence all aspects related to children, such as alimony, direct and regular relationship, and personal care .
(1) : The final judgment is added that declares the absence due to forced disappearance of a person and that, at the request of the non-disappeared spouse, declares the dissolution of the marriage (Article 7 and 10, Law No. 20,377).