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division of property in concubinage

5
Dec

Division of property in concubinage, de facto unions or common law.

  • By:Vianela Morillo
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The division of property and goods in concubinage, de facto union or common law is one of the issues that generate more questions among citizens since it is a very common social phenomenon in our society.

The topic of concubinage, de facto union or common law, is a broad topic that generates many questions. Today we will talk about the division of property in concubinage and the rights acquired by concubines as a result of the legislation in force in the Dominican Republic.

Definition and significance of Concubinage, de facto union or common law

 To address the topic of Concubinage, de facto union or common law, we will begin by saying that these terms are based on the coexistence of two people: a man and a woman, who are not united by a lawful marriage according to the laws of the country. Additionally, a life together in a common way based on an emotional relationship, stable and permanent, allows them to have certain rights.

The Criminal Division of the Supreme Court of Justice, in its judgment dated October 17th, 2001, established the following constituent elements:

  • Cohabitation, based on this characteristic, the couple must have a common domicile, and if the couple lacks a common domicile it is not possible to sustain the existence of concubinage.
  • Notoriety, based on this characteristic, must have a public relationship, of public knowledge.
  • Singularity, this must be a characteristic of the relationship, in which there may only be two people. There should be no similar relations with concubinage within the same concubinage, and moreover, there cannot be a real and legal marriage by one of the concubines.
  • Permanence and time, the relationship of the concubines must be lasting, even a certain number of years have been established in order to understand that there is a concubinage relationship (at least 3 years of relationship).

Rights of individuals united by concubinage

In principle, concubinage or common law has no legal value, it does not entail legal consequences and, unlike what many people believe, this type of union does not create any community of property among the concubines.

However, Dominican Jurisdiction admits that a de facto union between the concubines may be viable, if said union endures for a certain time, the constituent elements of which we have already made reference to are gathered and when contributions are established.

Damages in the event of accidental death of one of the concubines

In the Dominican Republic, there are numerous lawsuits related to the claim on compensation for damages suffered by a concubine, in the event of the death of a spouse. In general, the vast majority of these lawsuits go in favor of the plaintiff.

Judges generally rule in favor of the concubine by virtue of the base of civil liability, which is found on article 1382 of the Civil Code. This article protects victims from harm caused by people; it does not distinguish, but it establishes as a general principle, damage caused to an individual.

There is a famous ruling of the Supreme Court of Justice of the Dominican Republic, based on an appeal filed by Mrs. Fidelina María Suazo, dated October 17th, 2001. Mrs. Suazo was favored in its operative part in a fundamental manner, with an indemnifying ruling for damages endorsed by article 1382 of the Dominican Civil Code.

Other laws that recognize Concubinage and de facto unions

In addition to legislating on a property, Dominican law has also addressed the topic of concubinage in other aspects. One example is law 136-03, which recognizes concubinage as a type of family, which protects its offspring.

Furthermore, Law 136-03 also establishes the existence of de facto unions by categorizing acts of domestic violence, sexual assault, and abandonment that may be incurred by a cohabitant or former cohabitant to the detriment of the other as serious infractions.

Another law that refers to concubinage is article 54 of the Labor Code. This article establishes that employers are required to grant workers five days of leave with enjoyment of salary for the celebration of marriage; three days in the event of death of any of their grandparents, parents, children or a partner; and two days in the case of childbirth for the wife or the partner duly registered in the company.

Differences between Marriage and concubinage, in terms of existing rights within the community.

In both marriage and concubinage, spouses owe each other fidelity, help, and support. Therefore, in both cases (Marriage and Concubinage), couples are mutually binding on a community of life.

However, there are differences between rights and obligations within a Marriage and concubinage.

Depending on the property regime governing their marriage, a couple may enjoy all the rights established from article 1399 of the Dominican Civil Code. This article begins by saying that the community, whether legal or conventional, starts from the day the celebration of the marriage took place before the Civil Status Officer.

When it comes to the community of assets and liabilities, Dominican law establishes the following as community assets:

–          All the furnishings owned by the spouses the day the marriage was celebrated. Additionally, furnishings obtained during the marriage by way of succession or donation, if the donor has not expressed otherwise.

–          All of the earnings, income, interests and arrears of any kind that are sold or perceived during the marriage, and coming from the property that belonged to the spouses since their celebration. As well as earnings gained during the marriage by any title.

–          All furnishings acquired during the marriage.

As for the liabilities of the community, this is constituted by:

–          All the movable debts the spouses were involved in on the day of the celebration of the marriage and those acquired by them during the marriage.

–          Debts of capital, income or interest incurred by one of the spouses.

–          Income and interest only on income or passive debts that are particular to both spouses.

–          Usufructuary repairs of the properties that are not part of the community.

–          The food supplies of the spouses, the education and support of the children and any other burden of the marriage.

Separation of assets in concubinage or common law.

The fifth ordinal of article 55 of the Dominican Constitution, seems to state that concubine relations will create the same effect as a marriage; especially when it comes to the estate owned by the concubines and the community of goods, but in reality that is not the case. The reason behind this is that in that same ordinal in fine, it relegates these aspects of a consensual or common-law union to the law, i.e., when it says «IN ACCORDANCE WITH THE LAW», it is stating that everything related to the community of goods, will continue to be governed by what the law currently states. Furthermore, the mere existence of the concubinage is not enough, it is also necessary that a DE FACTO UNION be formed, between the man and the woman united this way, so that it can generate bonds of patrimonial participation.

Any woman or man who has a union in which monogamy, permanence, singularity, and stability can be demonstrated, may claim fifty percent (50%) of the common goods acquired during their lifetime in common law or concubinage. It is ideal to take into account that as with marriage, an inherited property is not considered a common property.

Finally, we can say that the consecration of concubinage helps to dispute the economic or patrimonial violence that men often exercised against women. Men believed that women had no right to any asset, however, this is no longer accepted, since a woman is a common partner in her husband’s assets, regardless of whether she is employed or a housewife.

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