29
Jan

We have covered conjugal property systems, addressing the most common system in the Dominican Republic, which is the Community Property Regime. We have also addressed the topic of the different types of divorce available in the country. However, this time it would be important to explain what happens following a divorce process, in cases in which there was a Community Property Regime.

According to Dominican Legislation and by reason of the Community Property Regime, whether the type of divorce was:

1. By Mutual Consent.
2. Or For Cause.

Marriage assets must be distributed equally among the spouses.

Which goods will be distributed equally among the parties?

According to the Law, the goods that fall within the scope of the Community Property Regime are the ones that were acquired:

1. During
2. And before the marriage.

Where such assets, at the time of the divorce process, are not yet divided and are still in a state of undivided ownership.

Let’s talk about the state of undivided ownership. What is it?

The state of undivided ownership occurs when two (2) or several persons have rights over a good that has not been divided. In order for that asset to be divided, it would need to be separated equally and each of the parties will need to benefit from said good separately.

Undivided ownership ends when one of the spouses or co-owners requests a partition.

According to article 815, of the Dominican Civil Code: “No one can be forced to remain in the state of undivided ownership of property. A partition may always be requested, despite any agreements and prohibitions that may otherwise exist.”

However, an agreement may be reached to suspend the partition for a limited time. Even though it may be renewed, this agreement is not mandatory after five years.

A division of joint matrimonial assets by divorce will be barred due to the expiration of the statute of limitations two years after the sentence was issued if the motion has not been attempted during that time.

After a dissolution of marriage by divorce, the liquidation and division of assets will be considered complete if, within two years after the divorce decree was issued, none of the spouses attempt to process it. Each spouse will keep what they have in their possession. For actions in community partition due to divorce, pronounced and published prior to the present law and which have not yet been initiated, the two-year term will start from the publication date of this law. ”

As can be verified in accordance with the provisions of article 815 of the Dominican Civil Code, the following is established as a general rule: “no one can be forced to remain in a state of undivided ownership”. The spouse has the right to initiate a personal motion, to be able to discontinue the undivided ownership status.

STATUTE OF LIMITATIONS FOR THE PARTITION OF COMMUNITY ASSETS

According to our legislation and as we have already mentioned, “No one can be forced to remain in a state of undivided ownership…”.

Article 815 of the Civil Code of the Dominican Republic specifically states: “No one can be forced to remain in a state of undivided ownership of property. A partition may always be requested, despite any agreements and prohibitions that may otherwise exist…”.

Article 815 of the Civil Code of the Dominican Republic also states: “the motion of a division of asset community due to divorce will be barred due to expiration of the statute of limitations two years after the sentence is issued if the motion has not been attempted during that time”. After a dissolution of marriage by divorce, the liquidation and division of assets will be considered complete if, within two years after the divorce decree was issued, none of the spouses’ attempts to process it. Each spouse will keep what they have in their possession…»

According to the Dominican Civil Code, if the division is not made within the established period of 2 years, the conjugal community partition will be considered complete. Additionally, according to the legislator, each party will retain each of the assets they own at that point.

Something important to take into account is that this statute of limitations of 2 years only applies to personal and real property that has not been subject to a sanitation process. This comes as a result of how registered real estate does not prescribe, in accordance with principle IV of Law 108-05, on Real Estate Registration: “Every right registered in accordance with the current Law have no statute of limitations and enjoys the protection and absolute guarantee of the State.”

As shown on principle IV of Law 108-05, on Real Estate Registration, in terms of real estate already registered, there is no statute of limitations of 2 years as established in the Dominican Civil Code. However, in the case of unregistered real estate and personal property, the statute does apply, as established in article 2279 of the Civil Code which states: “in the matter of furniture, possession is as bearing a title”.

LIQUIDATION PROCESS OF COMMUNITY ASSETS

In general, when a marriage is over the assets are liquidated equally, but it is not always easy.

The liquidation process of community goods can be:

An amicable Division: When the spouses do not agree on the partition of the common property.

The process is as follows:

If it is an amicable settlement, the division can be established in the act of stipulations and conventions. When it comes to Divorce by Mutual Consent and Divorce for Cause, the act may be drafted by a notary, establishing the agreement reached by the parties.

Division by Court: When the spouses disagree regarding the division of the common assets.

The process is as follows:

– The community of assets is dissolved after the transcript of the divorce decree is registered in the Civil Status Office books.

– Subsequently, the transcript of the divorce decree must be published in a national newspaper.

– To initiate a partition process with litigation, a partition claim is introduced through a subpoena.

– The Court of First Instance is the court with jurisdiction, depending on the location where the transcript of the sentence was processed.

The liquidation of the common assets will be considered complete if, within 2 years after the divorce decree was posted, none of the spouses begins the judicial process to carry it out.

In the event that the 2-year term established in article 815 of the Dominican Civil Code elapses, each spouse will keep what they have in their possession. The exception to this rule (as we have mentioned previously) is real estate, as this rule only applies to personal property and unregistered real estate.

Something important to note is that article 1463 of the Civil Code establishes a period of three months and forty days for women to accept the Community of goods. However, this article was deemed unconstitutional by the decision of the Supreme Court in March 2004, given that if the woman did not accept the process of partition within the established period, she would lose all her rights. From our point of view, this was absurd and the fact that it was declared unconstitutional is a great achievement for our legislation.

Moreover, law 189-01 repealed all these provisions of the Code in question targeted to women regarding the acceptance or otherwise, of the community of goods.

If you would like to receive personalized and detailed advice on this subject, you may contact us and a Family Law Specialist from the Morillo Suriel Attorneys at Law Firm in the Dominican Republic will be happy to assist you.