Couples who agree to divorce could have a law that allows them to expedite their separation without going through the judicial phase. The project was presented by the Progressive Liberal faction, led by Johanna Obando. It focuses on recognizing the element of “autonomy of will.”
This is the legal concept that allows citizens to do everything that is not prohibited. Applied to the context of marriages, this has to do with the fact that it is a decision made by two people.
Autonomy of the will of the people
“The marriage bond depends by its very nature on the autonomy of the will of the people. This means that no one can be forced to marry, much less to continue living with a person whom they do not love and do not wish to continue having a life together,” the proposal notes.
The main change will be the adjustment in the recognition of divorces by mutual consent. In them, both spouses must sign a public deed where the end of the marriage is verified and the following issues are agreed upon: How the custody of minor children will be taken. They could even set visitation schedules at once and, if they wish, also the amount of pension.
Possible pension payments for one of the members of the couple.
Even both or one of the spouses would be allowed to designate a representative to represent them in the process. Both members must file their joint divorce proceedings. If one does not appear, they will have a period of 5 days to demonstrate.
Finally, it is highlighted that if there are no children or assets involved, the process will be even more expeditious. There it will be enough to take the divorce deed to the Civil Registry for approval and registration.
It is also noted that in the event that one of the people chooses to request a divorce due to incompatibility of characters, there will no longer be specific deadlines. Until now, it was necessary to wait 6 months after the wedding to be able to exercise the right, but the project eliminates that wait. It should be noted that the figure could also be used to end de facto unions.
In the event that there are disputes over the amounts of support for the ex-partner or the children, this could be heard in the Pension Court while the divorce process by mutual agreement is processed more quickly.
Negotiate marital assets
The bill also proposes adjustments regarding the agreements that the couple generates before or during the marriage for the distribution of assets. The so-called “capitulations” could cover present and future assets.
In addition, they must be generated in a public deed that must be registered with the National Registry. The annotation could also be given when one or both spouses are merchants.
Finally, it is noted that the contract will be voidable if one of the members of the couple signed under threat or serious fear. Incidentally, the use of this figure would be allowed not only in marriages but also in de facto unions.
Divorce reform would need fewer votes
Within the process to formalize the law, one of the steps is the consultation before the Supreme Court of Justice. There are two possibilities there. It can be declared that the text would affect the Judiciary, with 38 votes being necessary for its advancement, or establish that it would not be affected, opening the doors to a simple majority of votes.
The technical team of the Judicial Branch postulated that the initiative would affect the institution, by launching those cases where one of the spouses retracted the agreement signed initially.
The proposed ruling defended by the Judge of Chamber II, Roxana Chacón, ruled out that hypothesis; alleging that it is already the responsibility of the Family Courts to resolve matters of this type.
Julia Varela, judge of the same Chamber, recalled that in October the Family Procedural Code will come into force. This will change more legal aspects of which the divorce reform would be an advance.
Streamline and de-judicialize
“We sought to streamline, de-judicialize, to a large extent, these processes so that the users of the system would have greater agility in resolving these issues,” he emphasized. Thus, the criterion was approved unanimously, allowing that now only 29 votes are needed if the project advances in the Legislative Assembly.
With this scenario, Representative Obando highlighted the expectation they have to move forward with the plan and recognize this simplification of the right not to continue in a union with another person.
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