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25
Mar

Divorce on the grounds of irreconcilable differences in the Dominican Republic.

  • By:Vianela Morillo

In previous articles, we have commented on how long it takes and the costs related to a Divorce in the Dominican Republic, as well as Divorce for foreign nationals and Divorces by Mutual Consent. However, there are a significant number of people interested in getting a divorce who are not eligible for these categories or cannot perform these procedures because they do not meet the criteria or requirements.

Among them is what is commonly known as Divorce on the grounds of Irreconcilable Differences.

Although in reality, Irreconcilable Differences are just one of the grounds for divorce which are part of a bigger spectrum, called “Divorce for cause”.

A Divorce for Cause is the type of Divorce in which a spouse invokes or states one of the causes listed by Law 1306 Bis on Divorce, in its article 2 of the Dominican Republic.

According to that article, the facts that may be grounds for this type of Divorce are the following:

  • Irreconcilable differences.
  • Adultery.
  • Absence of one of the parties, declared by the court.
  • Criminal offense conviction of one of the spouses.
  • Cruelty or physical abuse to one of the parties caused by the other.
  • Desertion by one of the spouses.
  • Drug or alcohol abuse.

Some of the requirements for this type of divorce are the following:

  • Marriage certificate.
  • Children’s birth certificate (if applicable).
  • Drafting and notarization of special power of attorney.
  • Identity documents of the spouses.

The process to follow for Divorce

Regardless of the cause presented before the Court of First Instance of the Judicial District where the defendant resides, the Court is the entity that would need to hear the Claim.

In the event that the defendant does not have a known residence in the country, the process will be carried out before the Court of First Instance of the plaintiff’s domicile. In the act of summons, which must be notified by a bailiff, the plaintiff will summon the defendant to appear at the hearing, on the date and time established by the Court.

In the event that the defendant does not attend the hearing, the hearing will take place all the same. Once the hearing is over, the Court will order the communication of the file to the Public Ministry for its opinion, from which the judge will admit or decline the divorce request, issuing the sentence publicly.

Summons at an Unknown Address

Summons at an unknown address has two purposes:

  • Determine capability.
  • Guarantee the right of defense of the defendant.

As soon as it is determined that the address of the defendant is unknown, the summons must be made at several locations:

  • At the last residence of the individual in question and certify that the party in question does not reside at that location, either by talking to a neighbor or a person residing in that same address or that the persons in the area do not know him.
  • Subsequently, you would need to go to the Court that will hear the claim, and notify the Secretary of your intention to place a copy of the summons on the mural intended for such purposes, consequently proceeding to place the copy on the mural.
  • You must also send a copy of the act to the Fiscal Prosecutor of the corresponding Judicial District, who then proceeds to endorse the original.

On the other hand, in the event that the defendant resides outside Dominican territory, the court of the domicile of the plaintiff will be considered the court with jurisdiction.

Notification at an unknown address in the case of women

Conversely, if the person being sued is the woman, a prior formality must be fulfilled consisting of publishing a notice for three consecutive days in a national circulation newspaper, which must be registered and certified by the editor responsible for the newspaper. The notice needs to state to the individual, that given the fact that her residence unknown, the summons will be notified to the Prosecutor of the corresponding Judicial District.

If this formality is not complied with, the court will not receive the Divorce claim, which would lead to restarting the process.

Appeal

For any Divorce for Cause decree, it is possible to resort to an appeal process, whose term will be 2 months from the notification date of said decree.

Divorce pronouncement

After the 2 months period allowed to file the appeal, the spouse who has obtained the divorce would need to notify the other spouse so that they appear before the corresponding Civil Status Officer, in order to make the divorce pronouncement.

Article 548 of the Code of Civil Procedure establishes that the operative part of the decree must be published in a newspaper of national circulation, within 8 days of the pronouncement of the Divorce.

Divorce due to conviction of one of the Spouses to a Criminal Penalty

In the event that a divorce is requested due to a criminal conviction of one the spouses, submitting a copy of the sentence pronouncing the conviction of the spouse to the court will suffice.

The aforementioned sentence must be final and needs to be accompanied by the certification of no appeal.

Divorce due to irreconcilable differences

Irreconcilable differences are one of the most common grounds for divorce in our country, given that other grounds such as Adultery, Desertion of one of the spouses decreed by the court, excessive cruelty or serious injuries committed by one of the spouses against the other and Alcoholism or drug addiction, are causes that claiming spouses rarely decide to allege, even if they are in fact the actual causal factor of the Divorce. As required by law, in the case of Divorce on the grounds of Irreconcilable Differences, facts that demonstrate unhappiness of the spouses and social disturbance must be presented, in order to make it easier to prove the said condition.

Terms

The conditions required to use “irreconcilable differences” as grounds for the dissolution of a marriage bond, must be based on facts that exhibit the “unhappiness of the spouses and social disturbance”.

As a result, it must be proven that life in common is unbearable and that this state is a cause of the social disturbance, i.e., it has escalated to affect the public interest.

Process to follow

This process begins with a summons in which, in accordance with the provisions of Article 4 of Law 1306-Bis on divorce, the defendant must be notified jointly of all the documents that are intended to be used during the divorce process. Additionally, this act needs to include a specific hearing date, seeing as this is a citation, and therefore must indicate the express summons for the defendant to appear personally or through a special attorney, the day and time established by the Court.

Other indications that this act of citation must contain are:

  • A statement specifying that the hearing will be held behind closed doors.
  • Anything regarding the custody petition of minors (if applicable).
  • You must include the conclusions in detail.

The Hearing

These types of hearings are considered to be of public order and are held behind closed doors.

On the day of the hearing, the parties, appearing in person or accompanied by their legal representatives, will proceed to state to the court the reasons that support their legal action, as well as presenting all the documents they consider relevant to the case.

Art.10 of Divorce Law 1306-Bis, states that once the hearing is over, the Court will order the communication of the file to the Public Ministry, in order to have them make a decision within five days.

The judgment

Regarding the sentence, Article 12 of Law 1306-Bis, establishes the following: “Once the file is returned by the Public Ministry with the corresponding ruling, the Court will rule admitting or dismissing the divorce. The sentence will be delivered publicly. ”

Divorce pronouncement

Once the sentence is issued, the spouse who had their request granted is given two months to notify the other party. This notification is required to ensure both parties will be present when pronouncing the Divorce and transcribing the operative portion of the decree in the Registry of the Corresponding Civil Status.

In the event that the corresponding pronouncement is not made within the two month period established by the Law, it is considered that there is no divorce decision and a new divorce process needs to be started.

Additionally, Article 548 of the Code of Civil Procedure establishes that the operative part of the decree must be published in a newspaper of national circulation, within 8 days of the pronouncement of the Divorce.

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Posted in: Civil Law, Family Law (Divorces)
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