To grant specialized justice for conflicts of a family nature. It is part of the government policy of modernizing the administration of justice.
The specific objectives that were taken into account for its creation were:
- Concentrate family matters in a single and specialized jurisdiction.
- Provide the parties with adequate instances to reach cooperative solutions. Promote peaceful and consensual solutions.
- Address family conflicts in their entirety, considering the multiple aspects involved. For this, the judge has specialized advice from a technical council.
- Guarantee that the judge has direct and immediate knowledge of the matters he is hearing. Oral, flexible, and focused procedures.
- Grant greater speed and efficiency to family justice.
- Improve access and increase the supply of justice.
What matters do family courts resolve?
- Authorization for minors to leave the country.
- Legal authorizations regarding the conjugal partnership.
- Family assets: this is to ensure that the house where the family resides cannot be sold, mortgaged or otherwise, by the owner spouse without the authorization of the other.
- Personal care (or custody) of children.
- Declarations of interdiction when a person is unable to manage their assets.
- Right and duty to maintain a direct and regular relationship with the children (visits).
- Dissent to marry.
- Filiationor determination of paternity or maternity.
- Guardians: request made to the judge to define who will be in charge of the care and / or property of a child under 18 years of age, when their parents have died or are not in a position to take care of them.
- Punishable acts or misdemeanors attributable to minors.
- Child abuse.
- Protection measures for children and adolescents in case of mistreatment, abuse, or abandonment, among others.
- Nullity of marriage.
- Parental authority: the rights and duties that the father and / or mother have over the assets of their minor children.
- Alimony pension.
- Separation of property in marriage.
- Judicial separation.
- Domestic violence.
- Any other personal issue derived from family relationships.
How are family courts accessed?
Filing a claim in Family Courts. Anyone can do it but it must be through a lawyer.
The claim must be presented in writing and only in qualified cases the judge may authorize its filing orally, drawing up a record for it. Once presented, the judge receiving the cases will carry out the admissibility control, ensuring that the claim meets the formal requirements and that the court is competent to see the claim, complaint or requirement presented.
Are there family courts throughout Chile?
Yes, there are in all the communes and regions of the country. However, in the smaller communes there are family courts with jurisdiction.
Do I always need a lawyer to file a claim?
Yes, a lawyer is always needed to sue, unless the judge makes an exception for well-founded reasons or it is a special procedure such as the application of protection measures; the procedure relating to domestic violence; non-contentious acts and infringement procedure.
If you cannot hire a lawyer, you can request free legal advice from your commune’s office of the Judicial Assistance Corporation .
What is the procedure of the family courts?
All procedures contemplate two hearings; a preparatory hearing and a trial hearing, which are characterized by being oral and always with the presence of the judge and the parties. There are 3 types of procedures, one ordinary and two special, the application of protection measures and the intra-family violence.
What is the ordinary procedure like?
Once the claim is filed, the court must set the first hearing or preparatory hearing in the shortest time and notify the parties. The defendant must answer the claim at least five days in advance of the preparatory hearing.
The plaintiff and the defendant must attend this hearing accompanied by their attorneys. In it, the parties make a synthesis of the demand and the answer; the judge decides on the precautionary measures, promotes whether the resolution of the conflict is feasible through mediation or conciliation; It determines the matter of the trial, which facts must be proven and which ones must not, receives the data of the witnesses that each party will present and the indication of the other evidence that the parties will render, and sets a second hearing.
The trial hearing (second and main hearing) must be held within 30 days of high school. The parties meet personally with their lawyer and present their evidence before the judge (witnesses, documents, others). At the end of it, the judge must communicate his resolution to the parties, without prejudice to setting another hearing to read the ruling.
The ordinary procedure applies in all cases where the law does not establish a special procedure.
What is meant by family mediation?
Family mediation is a conflict resolution system that the parties reach, assisted by an impartial third party called a family mediator. The mediator helps them to obtain a solution that arises from themselves, through sessions held outside the court, in an environment that favors understanding.
It is a voluntary procedure, although in some matters it is a mandatory procedure to be able to file the respective claim. The agreement reached by the parties must undergo a final approval step by the family court.
In which cases is family mediation mandatory?
In the cases of alimony, personal care of the children (custody) and direct and regular relationship with the children (visitation regime), the court will refer them to a mediator who will intervene so that the parties reach an agreement that ends the conflict without going to trial. The agreements reached before a mediator, if approved by the judge, have the same legal value as a sentence, avoiding all the time and cost of a trial. If the parties do not reach an agreement, the normal course of a trial is resumed.
Does mediation have any cost?
For cases of voluntary mediation:
- It must be financed by the parties and its maximum value will be determined by the tariff set by the Ministry of Justice.
- It will be free for people with limited resources or who are sponsored by the Judicial Assistance Corporationor another free legal aid entity.
For cases of compulsory mediation (cases of alimony, personal care of children (custody) and direct and regular relationship with children (visits):
- It is free, and exceptionally it may be charged for the service, in whole or in part, when users have the resources to finance it. For this, the income level, the ability to pay and the number of people in the family group will be considered.
Is there a body that oversees compliance with court decisions?
Yes, family courts now have enforcement or enforcement units tasked with enforcing court decisions. This prevents a broken sentence from re-entering the court as a new case. For example, if a person does not comply with the payment of alimony, the court will declare the executive payment of that money through this specialized unit.
When did the New Family Justice come into force and what modifications did Law 20. 286 introduce?
On October 1, 2005 ( Law No. 19,968 ) the law that created family courts came into force. The implementation of the new courts evidenced a series of aspects that had to be reviewed and adapted.
By means of Law No. 20,286 of September 15, 2008, organic and procedural modifications are introduced. The aim is to achieve a better organization and management of family courts, as well as more expeditious procedures in accordance with the specific requirements required by family justice.
Among the main modifications introduced by this law were:
- The number of judges (95 more), civil servants and administrators (640 more) increased.
- Courts of letters with common jurisdiction in smaller communes were strengthened.
- Enforcement or enforcement units were created for each court
- The positions of head of the services unit were created in all the country’s family courts, and that of head of the case unit, in the largest courts.
- Mediation is compulsory for causes of maintenance, personal care (custody) and direct and regular relationship (visitation).
- Mediation is mandatory for the most demanded causes: alimony, personal care (custody) and direct and regular relationship (visitation). This mediation will be done gradually in the different regions.
- Obligation to appear sponsored by a lawyer, unless the judge expressly excepts it for well-founded reasons or in the case of a special procedure such as the application of protection measures; the procedure relating to domestic violence; non-contentious acts and infringement procedure.
- Establishment of new “filters” for the admissibility of complaints, demands and requirements.
- Deed of the demand for the answer and counterclaim before the court.