20
Feb

Given that many of our blog readers are interested in obtaining more information about the legal basis of divorce in the Dominican Republic, I will be discussing it in this article.

As you know, marriage is a civil contract subject to several formalities according to our legislation and seeks to regulate the conjugal relationship between a man and a woman. Before being able to establish the different formalities and other requirements stated by law, marriage as we know it had to go through various stages, to be able to be part of the law in different countries.

Like marriage, divorce went through several stages before being able to be considered as it is and how we know it today. Ancient civilizations, for example, provided great power exclusively to husbands, and the closest thing to a divorce took place when a husband unilaterally renounced his wife. As a result, it can be said that “repudiation” was the closest thing to a divorce, as we know it today.

In Dominican legislation, none of the main codes in Civil matters, such as The Civil Code and the Code of Civil Procedure, address the divorce process, since divorce proceedings are currently regulated by a special law.

The legal basis of divorce in the Dominican Republic is established in Law 1306 of May 21, 1937. This Law contains all the provisions concerning the different divorce proceedings. The aforementioned Law consists of 43 articles, divided into seven chapters.

This law is not very extensive; therefore, we will briefly summarize it throughout different entries. In this piece, I will only discuss The causes of Divorce, the different causes that allow a process of Divorce for Cause and the requirements for a Divorce by Mutual Consent.

CAUSES OF DIVORCE

Art. 2, lists the causes for which a divorce can take place. These are:

1. The mutual consent of the spouses.
2. Incompatibility of characters justified by circumstances as unhappiness of the spouses and social disruption, sufficient to motivate the divorce, which will be evaluated by the judges.
3. The absence decreed by the court in accordance with the statute of limitations contained in chapter II, title IV of the first Civil Codebook.
   Adultery by any of the spouses.
4. The conviction of one of the spouses to a criminal penalty .-. Divorce cannot be filed for this cause if the conviction is due to a sanction of political crimes.
5. Serious abuse or insults committed by one of the spouses with respect to the other.
6. Voluntary departure from the home by one of the spouses provided that they do not return within two years. This period will be based on the legitimate notification made to the spouse who has left the home by the other spouse.
7.  The habitual drunkenness of one of the spouses, or the habitual or immoderate use of narcotic drugs.

DIVORCE FOR CAUSE

INCOMPATIBILITY OF CHARACTERS
According to the Law, in order to determine the Incompatibility of Characters as a cause for divorce, it must meet the following conditions:

• The unhappiness of the spouses: Which is nothing more than “marital disagreements”.
• Social Disturbance: This is simply the fact that people may have knowledge of the state of discord between spouses.

ABSENCE DECLARED BY THE COURT

• Absence decreed by Court is simply a special process to obtain a certification of the absent party’s last domicile by a court, to be able to declare them as such.
• The conditions required by article 115 of the Dominican Civil Code, for the declaration of absence are:

1.- That the spouse was absent.
2.- That there has been no news of their whereabouts.
3.- That a period of no less than four years has passed without hearing news of the absent party.

ADULTERY BY ANY OF THE SPOUSES

Adultery by any of the Spouses is one of the causal factors of divorce; however, it is very difficult to prove and you would essentially need to find your partner in the middle of the sexual act. Dominican legislators have understood that phone calls, holding hands and text messages, are not considered conclusive proof of adultery. As a result, this makes the aforementioned casual factor difficult to prove in order to justify a Divorce.

CRIMINAL OFFENSE CONVICTION OF ONE OF THE SPOUSES

To be able to resort to this cause, the Law establishes that a copy of the sentence and a certification, issued by the court’s clerk, must be presented to the court. This certification needs to state that the sentence acquired the authority of that which was irrevocably judged.

ABUSE OR SERIOUS Defamation

Abuse or Serious Defamation is nothing more than mistreatment, whether verbal or physical.

VOLUNTARY ABANDONMENT OF THE HOME

In order to verify this cause, there must be:

a) A material fact of abandonment.
b) The abandonment needs to be continuous.
c) The abandonment must have been voluntary.
d) That the spouse notifies the party who has departed of their abandonment, in a legitimate way.

HABITUAL OR UNCONTROLLED USE OF NARCOTIC DRUGS OR HABITUAL DRUNKENNESS

Habitual or uncontrolled use of narcotic drugs or habitual drunkenness is another cause for Divorce. However, Law 1306-bis does not establish a specific length of time, and only uses the term “habitual use”. Said use established by the Law, is a notion that judges will assess for themselves in a sovereign manner.

MUTUAL CONSENT

Divorce by Mutual Consent is the most common type of divorce in our legislation.
As the name implies, with a Divorce by Mutual Consent, both parties must be in agreement. Unfortunately, simply reaching an agreement is not enough to verify this type of divorce, since it is subject to 4 conditions, which are:

1. The consent must be persevering as well as mutual. In accordance with article 26 of Law 1306-bis, the mutual and persevering consent between the spouses, expressed in the manner prescribed in this law, will sufficiently justify that life in common is unbearable.
2. Two years of marriage. In accordance with the provisions of article 27 of Law 1306-bis, spouses must have at least two years of marriage. If the spouses have more than thirty years of common life, they cannot obtain a divorce by their mutual and persevering consent.
3. Age of the spouses. Article 27 of the Law also establishes that divorce by mutual consent cannot be requested if the husband is sixty years old and the woman is fifty.
4. Legitimate Stipulations. Article 28 of the Law provides the drafting of provisions, through a legitimate act; namely a contract made before a notary.

The act of authentic stipulations must contain the provisions of article 28 of Law 1306-bis. Among those provisions we can mention:

1. A) The formalization of an inventory listing all their personal and real property. If the spouses do not own assets, they would simply need to mention that they did not obtain goods in common during their marriage. Conversely, if the spouses are married under the system of separate ownership of property, it is not necessary to draft the inventory, they would simply need to reference this conjugal property system.
2. B) In case they have underage children, the conditions under which one of the spouses would keep the custody of said children.
3. C) Where the wife will reside during the process.
4. D) The amount agreed for child support, and anything else they may have agreed on.

Finally, it is evident that Divorce Law is a vital part of the Dominican legislation since this Law establishes the following:

– Divorce for Cause proceedings.
– Divorce by Mutual Consent proceedings.
– Provisional measures due to divorce proceedings.
– Effects of divorce.
– In short, everything related to divorce in the Dominican Republic

As we mentioned previously, we will address each of the topics pertaining to this Law throughout several articles. In the next entry, we will discuss Divorce for Cause and Mutual Consent in accordance with the Law.

Our Morillo Suriel Attorneys at Law firm, has the necessary experience to provide you with appropriate and specialized advice in Family Law, during these proceedings. In addition, we offer online services no matter where you are.