Divorce and Marriage Term
Wolfenson Lawyers provides advice and representation to our clients at the end of their marriage relationship.
The divorce procedure in Chile requires a presentation before the courts of law, whether it is a divorce by mutual agreement between the parties, unilateral where only one wants the termination of the bond or due to a fault of one of them. Wolfenson provides close and timely support from the beginning of this vital procedure, always seeking the maximum well-being of our clients.
Our firm provides a comprehensive representation for the adequate defense of your interests during each divorce proceeding in Chile.
Here is a legal guide to guide you through the divorce procedure:
What are the types of divorce in Chile?
In Chile there is a divorce due to cessation of cohabitation (this divorce can be requested by means of an agreement between the spouses or by only one of them), and a wrongful divorce (also known as a divorce sanction ).
How to get divorced in Chile?
We must point out that to obtain the declaration of divorce in Chile , certain requirements that the law establishes according to the type of divorce and the year in which the marriage was contracted must be taken into consideration. The foregoing means that the evidentiary means to prove the cessation of cohabitation and that must be accompanied in the lawsuit differ with respect to marriages celebrated before or after November 17, 2004.
What are the causes?
There are two types of divorce in Chile , varying the requirements and grounds of origin according to the type of divorce in question:
one. Divorce for cessation of coexistence: That is, that the spouses do not live together . In this case, the divorce can be requested by both spouses by mutual agreement , or only by one of them.
a) Divorce for Termination of Coexistence requested by both spouses by mutual agreement: For this, at least one year must have elapsed since the end of life as a couple , which must be proven at trial . If the marriage was celebrated after the new Civil Marriage Law came into force, the cessation of cohabitation must be proven with the limitations indicated in the aforementioned law, such as the need to accompany the certificate that certifies the effective cessation of the coexistence . In addition, the parties must accompany their request with an agreement that regulates their mutual relations with respect to their children and property .
b) Divorce for Cessation of Coexistence requested by one of the spouses: For this, at least three years must have elapsed since the cessation of cohabitation as a couple, which must be proven at trial . If the marriage was celebrated after the new Civil Marriage Law came into force, the cessation of cohabitation must be proven with the limitations indicated in the aforementioned law . The relative thing to the mutual relations of the spouses , to their children and goods , will be regulated in the judgment .
two.- Divorce for Guilt: It proceeds due to behaviors that seriously infringe the duties and obligations of marriage , or the duties and obligations that are held with respect to children, that make life in common intolerable . This type of divorce can only be requested by that spouse who has not incurred in the cause that gives rise to it (such as domestic violence ) and does not require a period to elapse. These grounds for divorce in Chile are:
one. Attempt against life or serious ill-treatment against the physical or mental integrity of the spouse or of any of the children;
two. Serious and repeated transgression of the duties of coexistence, relief and fidelity of marriage .
3. Conviction enforced by the commission of any of the crimes or simple crimes against the order of families and against public morality , or against persons, provided for in Book II, Titles VII and VIII, of the Penal Code , involving a serious breakdown of marital harmony ;
4. Homosexual conduct;
5. Alcoholism or drug addiction that constitutes a serious impediment to the harmonious coexistence between the spouses or between these and the children, and
6. Attempt to prostitute the other spouse or children.
Should divorce and annulment be sponsored (processed) by an attorney?
Yes, in these trials a lawyer specialized in divorces is always needed to sue and appear before the Family Courts , unless the judge, if necessary, makes an exception for well-founded reasons ( Article 18, Law No. 19,968 ).
How long does the divorce procedure take in Chile?
Law No. 19,968 that creates the Family Courts establishes the procedure applicable to actions for annulment and divorce , and orders the judge to adopt the necessary measures to carry the divorce proceedings to term as quickly as possible. In the same way, said law orders the summons to a preparatory hearing in the shortest time, however, the time that the judicial process can take is variable and will depend on various factors such as the court's workload , speed of the offices and the speed with which it is found and notifies the defendant . It will also depend on the issues discussed at the trial ; for example, if both parties request the divorce by mutual agreement , they must accompany a complete and sufficient agreement that regulates their mutual relations, financial compensation if any and those related to their children , which, if approved by the judge , could reduce the processing time .
What is the complete and sufficient agreement?
The complete and sufficient agreement consists of a public deed (before a notary) that must be drawn up by a lawyer and must contain everything agreed between the spouses regarding the maintenance due, the matters related to the property regime of the marriage and the regulation of matters related to children , being mainly the diet of minors , their personal care and the direct and regular relationship (visits). This agreement will suffice when it safeguards the best interests of the children , seeks to lessen the economic impairment that could have caused the rupture, and establishes equitable future relations between the spouses who are going to divorce.
Is judicial separation the same as divorce or nullity?
No. Unlike divorce and annulment , judicial separation does not end the marriage . It can be sued by one of the spouses for an imputable fault of the other, in the cases provided by law and can also be requested when life in common has ceased , in order to regulate mutual relationships and with respect to their children, without end the marriage.
How is the cessation of cohabitation between spouses proven?
Marriages celebrated after November 17, 2004, must prove the effective cessation of coexistence through certain instruments that act as means of proof, such as:
Public deed or an extended deed and notarized before a notary public where the term of the coexistence is recorded .
Minutes issued before the Civil Registry Officer in which the same record is left.
Copy of a judicially approved transaction , for example, in which the parties regulate the payment of alimony for the benefit of one of the spouses or the children.
Regarding marriages celebrated before November 17, 2004, the cessation of coexistence can be accredited by any means of evidence , however, the Law warns that the judge may consider that the cessation of coexistence has not been accredited if the means of proof contributed to the process do not allow him to form a full conviction about that fact.
Can I get a divorce if I got married before November 2004 and I do not have a certificate of cessation of cohabitation?
There is jurisprudence of the Supreme Court in which given the principle of probation it has been possible to obtain the divorce denied by the family court for the fact of not having the documents listed in the previous question. In these cases, the dismissal can be proven through the testimony of witnesses in the audience.
After divorce or annulment, is it possible to remarry?
Yes. To remarry the person has to be divorced or annulled . That is to say, there must be the final judgment of a judge , either nullity or divorce . The divorce proceedings do not end with the issuance of the sentence , since she must sub-register outside the marriage registration in the Civil Registry . Only after said sub-registration is verified, the spouses will acquire the civil status of divorced or single , as the case may be, and men may remarry immediately, while women must -as a general rule- wait 270 days .
Wolfenson Abogados provides expert legal advice for the divorce procedure in the city of Santiago de Chile.
Links of interest about Divorce in Chile :
1.- Civil Code
3.- BCN - Divorce
If you need more information and legal advice regarding the divorce procedure, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.