Legal capacity of minors in the Dominican Republic

Legal capacity of minors in the Dominican Republic

  • By:Vianela Morillo
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In this article, we will try to explain in simple words a topic that can often be questionable for some people in certain situations. The topic in question is the Legal Capacity of minors in the Dominican Republic. Natural persons are entitled to Civil Rights throughout their entire lives and are endowed with personality and legal capacity. This legal capacity allows them to be subject to rights and responsibilities, which in essence means having the following:

  1. Competency to comply with their responsibilities; and
  2. Capacity to enjoy their rights.

In legal terms, a person with lack of capacity is an individual who according to the law or by court order, is prevented from exercising common functions of their legal life, and cannot manage their own assets or act on their own accord.

The legal incapacity of a minor is based on the fact that the individual is still far from having completed their intellectual and physical development. As a result, it is understandable that they are not granted the capacity to fully exercise their Civil Rights.

Underage individuals lack the capacity to do the following:

  1. Perform any legal action;
  2. Bear rights and responsibilities

Legal representation of minors who lack legal capacity

Representation means having a person act directly on behalf of another party.

According to article 389 of the Civil Code, parents are the representatives of their underage children. This article establishes the following:

«During a marriage, parents have the responsibility to manage the personal property of their underage children. They are also responsible for the property and earnings of goods without usufruct, and only for the property granted to them by law.

Consequently, children need to be represented by their parents, as legal administrators.

The parents must always act in the best interests of the child, given that legal representation is not a right for the parents, but for the children.

Please note that even if one of the parents has been awarded custody of the child, the custodial parent is not the child’s sole legal representative, but rather both parents are. For more information on custody matters, you may access one of our blogs here.

Applicable to one of the parents when:

  1. The other parent is deceased
  2. One of the two has lost Parental Rights

If you need more information about loss of parental rights, you may click here.

When it comes to minors who do not have parents, legal representation is referred to as Guardianship, which consists of taking care of a legally incapacitated person, representing them and managing their assets.

It is also possible to start a guardianship when one of the parents puts the patrimony of the minor at risk, in accordance with the provisions of Article 201 of Law 136-03.

When the minor is emancipated, a Curator is appointed. This curator only serves as a consultant for the emancipated minor, to assist them with decision-making, but they do not represent said minor.

Capacity of minors to undertake legal acts

One of the requirements for a party to undertake legal acts (either to act as a plaintiff or a defendant) is to have legal capacity, which is not something that underage individuals have. In accordance with the provisions of article 39 of Law 834 of 1978, the lack of legal capacity is a cause of substantive nullity that affects the validity of a proceeding.

Being underage constitutes a legal circumstance that makes it impossible to carry out any legal action, since due to the natural lack of physical and mental maturity of the individual, they are not in a position to claim their rights by themselves. Alternatively, it is up to the will of the minor’s representative to carry out legal acts on their behalf.

Procedural capacity is the legal aptitude every person must have in order to partake in legal acts, hence why a minor cannot be a plaintiff or a defendant directly.

As a result, you can not sue a minor directly, but through their representative and legal guardian.

Minors and Marriage

In 2021, through Law No. 1-21, a prohibition was issued on marriage between persons under the age of 18.

At that point, child marriage was eliminated in the Dominican Republic, through the elimination of the subsequent articles of the Civil Code and Law 659.

Establishing the following:

“Article 3.- Amendment of Article 144 of the Civil Code. Article 144 of the Civil Code of the Dominican Republic is amended to read as follows: “Article144.- Persons under the age of eighteen may not marry under any circumstances”.

Article 6.- Amendment of Article 56 of Law No. 659, On Civil Status acts.

Article 56 of Law No.659, on Acts of the Civil Registry is amended to read as follows:

“Article 56.- REGULATIONS APPLICABLE TO THE CELEBRATION OF MARRIAGE. 1) MINIMUM AGE FOR MARRIAGE. Only persons who have reached the age of 18 and have legal capacity can enter marriage.

Therefore, at the moment only people who have turned 18 and have legal capacity can marry.

Assets and liabilities of minors

The patrimony of a minor is a topic that attracts attention, because it is not common knowledge whether a minor can possess a patrimony or not, given that to answer that question, the ability of the minor to obtain, administer, manage and dispose of their own patrimony would need to be discussed.

The minor has the capacity to acquire, contract or be bound if they have the intervention and representation of their parents or guardian to do so. As for the exercise of their rights over their assets, and in general terms, said assets are subject to the sole administration of their parents or guardian.

Therefore, a minor who acquires property through their employment or any other title will have ownership of it, but may not manage it without the authorization of their legal representative.

As we explained previously, when it comes to debts, underage individuals may acquire possession of things, but the Dominican Civil Code, in its article 1108, establishes the essential conditions for the validity of the agreements. These conditions are the following:

  • The consent of the party being bound
  • Contracting capacity
  • A certain object that forms the subject of the commitment
  • A lawful cause in the obligation

Minors do not have the legal capacity to act, which is the ability to exercise rights through acts, contracts, or legal businesses, given that in order to have this capacity it is necessary that the person possesses certain powers that allow them to understand the meaning of their acts, which as we have said, it is understood that minors do not possess. We are of the opinion that underage individuals will not be able to acquire debts, even if they have the consent of their parents and even if the parents are jointly responsible with said minors.

Civil and criminal liability of minors in relation to third parties

Damages caused by minors are handled similarly to how an estate is formed and acquired by a minor. Civil damages such as breaches of contracts, as well as criminal damages such as damage to property, are assumed by the parents, as long as the individual is under 13 years old.

Persons over 13 years of age are criminally responsible, may be arrested, and even deprived of their liberty, although they are subject to juvenile criminal justice, which is a special regulation, until they reach the age of majority.

Capacity to inherit and pay taxes

When a person dies, they often leave underage heirs, who are usually their children.

According to article 906, of the Dominican Civil Code:

“To be able to inherit from a successor who is still alive, one must simply have already been conceived at the time of donation. In order to be able to inherit by will, one must simply be conceived at the time of the testator’s death. However, if the child is not born viable, neither the will nor the donation will take effect.”

In this sense, natural persons have legal capacity by birth to receive donations and inheritances, as well as being able to hold rights and obligations until their death.

In each case where an inheritance lists underage individuals, a family council would need to be constituted, which ensures that the child’s rights will be protected.

If one of the spouses is deceased, the other parent will be the one who manages the assets of the minor and will be in charge of managing the assets inherited by the child, unless, of course, the family council decides otherwise.

The inheritance process is carried out as usual, even when a child is listed as a beneficiary, however, as we stated previously, it is necessary to have a family council constituted, in order to sell the goods, and manage the profits resulting from the sale, in order to make them available for the child or incapacitated individual.

When it comes to children who are beneficiaries of an inheritance while their parents are alive, the children will need to be represented by one of their two parents or legal guardians.

On the payment of inheritance tax, Law No. 2569, of Inheritance and Donation Tax, establishes that the payment of inheritance tax is borne by the heirs, successors, and legatees. As a result, underage heirs of an inheritance carry fiscal obligations, for the payment of inheritance tax.

Companies and minors

According to Law 479-08, article 100, minors cannot have managerial roles, however, it does not establish an objection on them being partners.

“Article 100. Limited liability companies will be managed by one or more managers who must be natural persons, whether partners or not. Their designation may be statutory or by a subsequent act from the company. They will be designated for a fixed amount of time that may not exceed six (6) years established by the bylaws.

Paragraph.- Minors who are unemancipated, incapacitated, or convicted of a criminal violation, as well as those who, by reason of their functions cannot carry out trade, may not be managers.”

Over the years, it has become increasingly common for minors to be shareholders of  companies, while being represented by their parents or guardian.

Consequently, in accordance with the aforementioned article, underage individuals can be partners of a company but must be represented by their parents or guardians as partners or shareholders, however, they may not be managers.

In our law firm Morillo Suriel Attorneys at Law, we have a division specialized in Family Law with an area designed to work with cases related to Children and Adolescents. Through this unit, we can assist you with any concern or consultation you may need in matters of Legal Capacity of minors in the Dominican Republic or any other question related to the matter.

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Posted in: Family Law (Boys, Girls and Teenagers in Dom. Rep.)

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