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| divorce in dominican republic |
1.- END OF MARRIAGE
According to the norm contained in Article 1 of Law Number 1306-BIS, the marriage is dissolved by the death of one of the spouses or by divorce.
2.- CAUSES OF DIVORCE IN THE DOMINICAN REPUBLIC
Divorce proceeds when the seven causes determined by Article 2 of the aforementioned Law Number 1306-BIS are verified, which establishes as the first cause of divorce:
A) Mutual consent, and
B) The other specific grounds, namely:
1) The incompatibility of characters, justified by facts whose magnitude as a cause of unhappiness of the spouses and of social disturbance, sufficient to motivate the divorce, will be appreciated by the judges;
2) The absence, decreed by the court in accordance with the prescriptions contained in chapter II of title IV of the first book of the Civil Code;
3) The adultery of any of the spouses;
4) The sentence of one of the spouses to a criminal sentence (other than political crimes);
5) Serious abuse or injury committed by one of the spouses with respect to the other;
6) The voluntary abandonment of one of the spouses from the home, if they have not returned for a period of two years; Y
7) The habitual drunkenness of one of the spouses, or the habitual or immoderate use of narcotic drugs.
In effect, the aforementioned rule contained in Article 2 of Law Number 1306-BIS, on divorce, establishes the following:
CHAPTER II - Grounds for divorce
Art. 2.- The causes of divorce are:
a) The mutual consent of the spouses.
b) The incompatibility of characters justified by facts whose magnitude as a cause of unhappiness of the spouses and of social disturbance, sufficient to motivate the divorce, will be appreciated by the judges.
c) The absence decreed by the court in accordance with the prescriptions contained in chapter II of title IV of the first book of the Civil Code.
d) The adultery of any of the spouses.
e) The condemnation of one of the spouses to a criminal penalty.
II. Paragraph.-. Divorce may not be requested for this reason if the conviction is the sanction of political crimes.
f) Serious abuse or injury committed by one of the spouses with respect to the other.
g) The voluntary abandonment of one of the spouses from the home, provided that they do not return to it within a period of two years. This period will have as its starting point the authentic notification made to the spouse who has left the home by the other spouse.
h) The habitual drunkenness of one of the spouses, or the habitual or immoderate use of narcotic drugs.
3.- DIFFERENCE BETWEEN DIVORCE BY MUTUAL CONSENT AND DIVORCE BY CHARACTER INCOMPATIBILITY
It can be pointed out that one of the differences between the first ground for divorce, that of mutual consent - and the other specific grounds, is consent, that is, the common will of the parties.
Thus, in the case of divorce by mutual consent , it is sufficient that both spouses have the will to end the marriage bond and comply with the other formalities established by law. However, in other cases, a unilateral will and the fulfillment of certain questions of form are not enough, but also the plaintiff spouse has the duty to prove the cause by virtue of which he intends to obtain the divorce.
4.- REQUIREMENT TO PROVE THE REASONS FOR THE DIVORCE FOR A SPECIFIC CAUSE
The Civil Chamber of the Supreme Court of Justice has created constant jurisprudence when it has established that if one of the spouses sues for divorce for one of the causes determined in the text described above, they have the duty to prove it. In this regard, he has stated that:
your confirmation proceeds; that, in this sense, the study of the judgment of first instance intervened in the species, whose certified copy is in the appeal file, to whose reasons the decision now challenged refers, qualifying them as correctly founded, which constitutes an adoption of motives by the Court a-qua, express that the constant disagreements of the spouses, the indifference and lack of consideration between them and the separation in which the spouses in question live, are facts from which the two conditions of divorce indicated are inferred previously and, consequently, the divorce must be admitted for the determined cause of incompatibility of characters (sic); that, as can be seen, the aforementioned cause of divorce, the main object of the original claim, was not duly supported by the Court a-qua, because it does not establish in its ruling, nor is it deduced from the first degree decision adopted by said Court, as has been said, the precise and determining facts of the disagreements, lack of love and lack of consideration allegedly existing between the spouses in the case , nor does it indicate the source of evidence from which he extracted those assertions, nor does he state specifically, as the current appellant rightly denounces, whether the facts whose magnitude configure the alleged incompatibility of characters transcended the public, the neighbors and those around the spouses, as a cause of social disturbance, a vital justifying element to motivate the divorce for that reason; that, due to the fact that the judgment under attack, and the ruling of the first degree that it adopts, fail to establish these facts precisely,(Supreme Court of Justice of the Dominican Republic. Judgment number 40, of January 24, 2007).
From the interpretation of the texts cited above of Law Number 1306-BIS, as well as from the constant jurisprudence of the Dominican Courts, it is evident that in matters of divorce the principle that enshrines the norm contained in Article 1315 of the Code has been applied. Dominican Civil in the sense that: who alleges a fact in justice has the duty to prove it.
This implies that the spouse who sues for divorce for one of the specific causes contained in Article 2 of the aforementioned Law Number 1306-BIS, has the obligation to prove the facts on which his claim is based.
This has been enshrined for the purpose of protecting marriage and family. The family, according to the norm contained in Article 55 of the Constitution of the Dominican Republic, is the foundation of society and the basic space for the integral development of people, for this reason, the State has the obligation to guarantee its protection and organization. . In such a way that it has been understood that this purpose is achieved by specifying in the law the specific causes that must be verified by a judge to grant the divorce (Sentence TC/0601/17).
Indeed, the norm contained in Article 55 of the Constitution of the Dominican Republic establishes, among other aspects, the following:
“The family is the foundation of society and the basic space for the integral development of people. It is constituted by natural or legal ties, by the free decision of a man and a woman to marry or by the responsible will to conform it.
[…]
The State shall promote and protect the organization of the family based on the institution of marriage between a man and a woman. The law will establish the requirements to contract it, the formalities for its celebration, its personal and patrimonial effects, the causes of separation or dissolution, the property regime and the rights and duties between the spouses.
According to the text quoted from the previous Article, three fundamental ideas are extracted, namely: 1) The family is the foundation of society and the basic space for the integral development of people; 2) The State has the duty to promote and protect marriage; and, 3) Marriage in the Dominican Republic takes place between a man and a woman. It has been established that this rule protects the family: this means that it constitutes a constitutionally adequate purpose that, at the same time, contributes to guaranteeing the best interests of the minor members of the family (Sentence TC/0601/17).
In our legislation, people have the free will to marry and can also break the marriage bond through divorce, provided that the mechanisms provided by the legislator are used. This is precisely what the norm cited above promotes in the sense of creating a legal mechanism to guarantee that people can break the marriage bond.
Consequently, the purpose sought by the cited norm is to protect the most important cell of our society, where the future citizens of our nation are born and formed and for whom we must try to provide the safest and most favorable environment so that they can fully develop. . Keep in mind that in a family the roles of the father and mother are irreplaceable and necessary for the healthy growth of the child. Not to mention the support that each of the spouses represents by having the company and support of the other in the great task of educating children and, in general, to overcome the difficulties that will arise throughout the life of each of them (Judgment TC/0601/17).
For this reason, the Constitutional Court of the Dominican Republic understands (in Judgment TC/0601/17) it is reasonable that in the face of a divorce claim the plaintiff spouse be required to express before a judge what these character incompatibilities consist of so that the judge can assess if the unhappiness caused is such that it warrants the dissolution of this institution.
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