DIVORCE LAW

CHAPTER I

Article 1.- (Amended by Law 3932 of September 20, 1954, O.G. 7749). Marriage is dissolved by the death of one of the spouses, or by divorce.

Paragraph 1.- However, in accordance with the essential properties of catholic marriage, it is understood that the fact itself of choosing to be joined in catholic marriage implies that the spouses waive their civil right to file for divorce, which for this reason may not be applied by Civil Courts to canonical marriages.

Paragraph II.- The provisions contained in the foregoing paragraph shall apply to catholic marriages celebrated on or after August 6. 1954, which was the date of the ratification of the Concordat between the Dominican Republic and the Holy See on June 16, 1954, pursuant to article 28, paragraph 1 thereof.

CHAPTER II

GROUNDS FOR DIVORCE

Article 2.- (Amended by Law N­2669 of December 31, 1950, G.O. 7231). The grounds for divorce are:

a) The spouses’ mutual consent.

b) Irreconcilable differences, justified by facts the magnitude of which as a cause of unhappiness for the spouses and social disturbance constituting sufficient grounds for divorce shall be assessed by the judge.

c) Absence decreed by a court of law in accordance with the prescriptions contained in Chapter II of Heading IV of Book One of the Civil Code.

d) Adultery by any of the spouses.

e) Conviction of one of the spouses on a criminal charge.

Paragraph.- A suit for divorce may not be brought by this reason if such conviction is a punishment for political offenses.

f) Abuse of or serious insults to one spouse by the other.

g) Voluntary abandonment of the home by one spouse, if he/she does not return within two years. Such time shall be the starting point for an authenticated summons served on the spouse who has abandoned the home, by the other spouse.

h) Habitual drunkenness of one of the spouses, or the habitual or immoderate use of narcotic drugs.

SECTION ONE

Divorce Proceedings for Cause

Article 3.- All actions for divorce for cause shall be brought before the court of first instance of the judicial district of the respondent’s place of residence, if he/she has a known domicile in the Dominican Republic;otherwise such action shall be brought before the court of first instance of the judicial district of the plaintiff’s place of residence.

Article 4.- The plaintiff shall have a summons served on the respondent, in the usual manner, so that the respondent appears personally, or through a proxy provided with an authenticated written document, to the closed hearing to be held on such date and at such time as stated in the summons; and at the head of such summons, the respondent shall be given copies of the documents that shall be used to substantiate the plaintiff’s charges, if any.

Paragraph I.- Together with the suit for divorce, the plaintiff shall give the respondent the list of the witnesses whom he/she intends to have depose at the hearing.

Paragraph II.- Every suit for divorce shall set forth briefly, under penalty of nullity, the plaintiff’s petition regarding custody of the children, or it shall mention what the parties shall have agreed to through a contract made to that end.

Paragraph III.- A woman shall need no authorization to file for divorce.

Article 5.- If any of the facts alleged by the plaintiff should lead to prosecution of the respondent by the District Attorney, the action for divorce shall be suspended until the proper court of law shall have made a final decision regarding such matter.

Article 6.- At the expiration of the term for summons, whether or not the respondent appears at the hearing, the plaintiff, personally or by proxy, with the assistance of his/her attorney, shall state the reasons for his/her suit, shall submit all substantiating documents, shall have his/her witnesses heard, if any, and shall conclude as to the merits of the case.

Article 7.- If the respondent appears at the hearing, whether personally or by proxy, he/she may state his observations about the reasons for the divorce suit, about the documents produced by the plaintiff, or about the witnesses heard at the plaintiff’s request. The respondent may also have his/her witnesses testify at the same hearing, against whom, the plaintiff may in turn make observations. The respondent shall have no right to have his/her witnesses heard if he/she has not given the plaintiff a list of their names at least two days before the day of the hearing, exclusive of the date of the hearing.

Article 8.- The Court Clerk shall make a record of the parties’ presence at the hearing, of their statements and observations, of their confessions, of the witnesses’ testimony and of any objections regarding them. Such record shall be read to the parties, who shall be required to sign it, and an entry shall be made thereon of their signatures or their declaration of not being able or willing to sign. The witnesses shall sign the record at the foot of their respective declarations, after such record shall have been read and approved, and if they should not be able or willing to sign, an entry of such circumstance shall be made thereon.

Article 9.- Any objection of witnesses shall be judged at the same hearing, the Judge not leaving the courtroom, and the rules set forth in articles 282 et seq. of the Code of Civil Proceedings shall be followed regarding the witnesses’ evidence in the matter of divorce, excepting any special provisions to the contrary established in this law.

Paragraph.- The parties’ relatives shall not be objected, excepting their children and descendants, and neither shall be their servants by reason of such relationship.

Article 10.- When the hearing shall have finished, the Court shall order that the file be remitted to the District Attorney, so that he/she makes a decision within a term of five days, exclusive of the day when such remittance and such decision are made.

Article 11.- Before ordering the remittance of the file to the District Attorney, the Judge, if he/she shall judge it appropriate and if, in his/her opinion, the documents submitted to substantiate the action for divorce are not convincing, may order an inquiry in such manner as established by the Code of Civil Proceedings.

Paragraph: When the Judge shall have ordered an inquiry, the Court Clerk shall give a copy of the judgment containing such order to the plaintiff, so that the plaintiff shall have it served in due time on the respondent and on the witnesses whose names are listed in such judgment. The respondent may request that the witnesses presented by him/her and whose names are included in the aforesaid judgment be summoned.

Article 12.- After the District Attorney returns the file with the appropriate decision, the Court shall render judgment awarding or denying the divorce in question. Such judgment shall be pronounced publicly.

Paragraph I.- All judgments of divorce for cause shall state which spouse shall have custody of the children issued from their marriage, and the Judge must first of all honor any agreement made by the parties in this respect; but failing any such agreement before or during the action for divorce, the Judge must adhere to the following directives: a) All children under four years of age shall remain in the care and custody of their mother, provided that the divorce has not been pronounced against her for the causes set forth in sections e, f and i of article two of this law; b) all children over four years of age shall remain in the custody of the spouse who shall have obtained thedivorce, unless the Court, whether at the request of the other spouse or of any member of the family or the District Attorney, and in the children’s best interest, orders that the other spouse or a third party shall have custody of all or some of the children.

Paragraph II.- Regardless of who is entrusted with custody of the children, both parents remain entitled to see to their support and education and are obligated to contribute thereto in proportion to their financial resources.

Article 13.- When a spouse files for divorce because the other one has been sentenced for a crime, the only formalities to be observed are to submit to the Court a copy of the judgment sentencing the defendant spouse to a criminal punishment, a certificate issued by the Clerk of the sentencing Court attesting that such sentence is not susceptible of being reformed through any ordinary legal means. The Clerk’s certificate shall be visaed by the District Attorney of his/her Court of Law, or by the Attorney General of the Republic.

Article 14.- (Annulled by Law N­2669 of December 31, 1950, O. G. 7231).

Article 15.- All judgment of divorce for cause shall be deemed contradictory, whether the respondent is present or not, and shall be appealable; any such appeal shall be substantiated and shall be judged by the respective Court of Appeals as a summary matter.

Article 16.-In order for an appeal to be admissible, it should be attempted within two months after the date of notification of the judgment.

Article 17.- By virtue of a final judgment of divorce, and except if a cassation appeal is instituted–which is suspensive as a matter of law–the spouse who has been awarded judgment shall be obliged to appear before the City Clerk within two (2) months therefrom, in order to have the divorce pronounced and the provision of such judgment transcribed in the office of the City Clerk, and shall have a summons served on the other party to appear before the City Clerk and hear the pronouncement of divorce. The transcription of the provision of such divorce judgment shall contain the date, the number, if any, and the court of law which rendered it.

Paragraph.- The City Clerk shall not pronounce a divorce, and neither shall he/she transcribe the provision of the judgment unless all the formalities prescribed by article 548 of the Code of Civil Proceedings have been met, and unless he/she has been shown evidence that the other spouse has been summoned to attend the pronouncement of divorce, as set forth in this article. The City Clerk who pronounces a divorce in contravention of the foregoing provisions shall be subject to dismissal, without prejudice of any appropriate civil liabilities.

Article 18.- The period of two months stated in the preceding article shall begin, in the case of judgments rendered in first instance, after the expiration of the term for appeal; and those rendered in absentia in appeal, after the expiration of the term for opposition.

Article 19.- The plaintiff spouse who has allowed the two-month term established in article seventeen to expire shall lose the benefit of the judgment awarded to him/her, and may not obtain another judgment unless it is for a new cause, which nonetheless may include the previous causes.

Article 20.- A judgment of divorce shall be deemed not pronounced or extinguished if one of the spouses dies before all legal formalities are fulfilled.

SECTION TWO

Provisional measures which may be taken in a divorce suit

Article 21.- The husband, plaintiff or respondent, shall be in charge of the provisional administration of the children, unless the Court orders otherwise, in the children’s best interests, upon request by the mother, by the family, or by the District Attorney.

Article 22.- As soon as any action or proceeding is started regarding the divorce, the provision of article one hundred and eight of the civil code which states that the domicile of a married woman is that of his husband’s shall cease to be in effect. The woman may leave the husband’s residence during the process, and she may ask for financial support in proportion to his ability. The court shall indicate the house where the woman shall be obligated to live, and shall fix, if appropriate, the support to be paid by the husband. All notices, including whatever preliminary acts intended to establish proof of abandonment or other facts regarding the divorce must be served upon her personally, under penalty of radical and absolute nullity, or upon the District Attorney of the court in charge of deciding about such divorce, who shall take all such actions as shall be necessary for any such notice to be made known to the woman.

Paragraph (Added by Law 2153 of November 12, 1949).- In all cases where a summons has to be made by the District Attorney, it shall be obligatory for the plaintiff husband, under penalty of radical and absolute nullity, to publish previously an announcement in a national newspaper with widespread circulation, for three consecutive days, warning the respondent wife that, failing information regarding her place of residence, she shall be sued for divorce before the District Attorney of the court in charge of deciding about suchdivorce. Such publication shall identify the court, the date when the action for divorce shall be filed with the District Attorney, the cause for such suit, the name of the plaintiff, the name of the woman against whom the action for divorce shall be instituted, the woman’s last place of residence known to the husband, and the day and time set for the hearing. A copy in extenso of such publication shall be given to the District Attorney in charge of the case. The judge in charge of the case shall declare the suit non-receivable if he/she is not given proof that the aforesaid publications have been made, by depositing the three newspaper copies, certified by the editors, containing the three consecutive publications ordered by this law.

Article 23.- The woman shall be obligated to justify her residency in the house indicated, whenever she is asked to do so. Failing such justification, the husband may refuse to pay for support, if he justifies that the woman has abandoned the residence indicated.

Article 24.- The woman who holds property in common with her husband, whether she is the plaintiff or the respondent, may at all times during the proceedings–from the date when the suit is filed–require for the preservation of her rights that such property be bound. Such bind may only be removed after an estimate inventory has been taken, and the husband shall be obligated to produce the inventoried goods, or he shall be answerable for the value thereof as legal custodian.

Article 25.- All liabilities of the conjugal community, any alienation of real property held in common, incurred or done by the husband after the date when the action for divorce was started shall be annullable if it is proved that they defraud the rights of the woman.

CHAPTER IV

On Divorce by mutual consent and the procedures to be followed

Article 26.- The spouses’ mutual and persevering consent, expressed in such manner as prescribed by law, shall sufficiently justify that their life in common is unbearable.

Article 27.- A divorce by mutual consent shall not be admissible before two years of marriage; it shall neither be admissible after thirty years of life in common, or when the husband is at least sixty years of age and the woman fifty.

Article 28.- The spouses shall be obligated, before appearing in front of the judge who shall hear their case, to: 1) make a formal inventory of all their personal and real assets; 2) decide which of them shall have custody of the children born from their marriage, during the divorce proceedings and after the pronouncement thereof; 3) decide at which house the wife shall reside during the proceedings, and the amount to be given to her by the husband, for support, for the duration of the divorce proceedings and until a final judgment is awarded.

Paragraph I.- All these conventions and stipulations shall be made by means of an authenticated document.

Paragraph II.- When the foregoing formalities shall have been fulfilled, the spouses– personally or by proxy warranted by means of an authenticated document–provided with the documents containing the stipulations referred to herein, as well as with a copy of the certificate of marriage and the certificates of birth of the children from their marriage, shall appear before the Judge of First Instance of their domicile, and shall state their intent to divorce by mutual consent, and that to this end, they request authorization to institute divorce proceedings.

Paragraph III.- Failing the existence of birth certificates, due to the absence thereof in the city clerk records, a declaration before a notary public by several witnesses shall be entirely valid.

Paragraph IV.- In the case of Dominican spouses residing abroad, the conventions and stipulations may be drawn up through special attorneys and signed by them before a notary public of the jurisdiction chosen by them in the document containing the proxy. In such conventions and stipulations, the parties shall expressly give competence to a Judge of First Instance of the same venue indicated by them in the proxy, to hear and render judgment in the matter of their divorce.

Paragraph V.- Foreigners who are in this country, even if they are not residents, may divorce by mutual consent, provided that at least one of them is present at the hearing and the other one is represented by a special proxy, and that they expressly agree to submit to the competence of a Judge of First Instance and state so in the act of conventions and stipulations instrumented by a notary public of the same jurisdiction of the court of law chosen by them. For the case provided in this Paragraph, the provisions of Art. 2 of this law shall not apply.

Article 29. The Judge, in view of the spouses’ declaration, shall make a record of their depositions.

Article 30. After verifying that all legal requirements have been fulfilled in order for the action for divorce to be admissible, the Judge shall authorize such action, fixing a term of not less than thirty days and not more than sixty days for the spouses to appear in court; and in view of all the documents, he/she shall render a judgment eight days after the hearing.

Paragraph I.- Such judgment shall conform in all respects to the stipulations set forth in the documents mentioned in article twenty-eight, which may not be varied unless the spouses themselves wish to do so on the day of the hearing, upon prior mutual agreement.

Paragraph II.- For the case mentioned in Paragraph V of Article 28 of this Law, the Judge shall authorize the action for divorce, setting the date therefor within a period of tree days for the spouses to appear in court. After the hearing, the Court shall order that the District Attorney be notified, so that he/she may make a decision within a three-day period, exclusive of the day of such notification and the day of such decision, and the Judge shall render judgment within the three (3) following days.

Article 31.- The spouses, or the most diligent of them, are/is obligated to have transcribed in the Civil Registry the judgment admitting their divorce, and to have such divorce pronounced, which should be done not later than eight days afterwards, exclusive of the day of such pronouncement.

Paragraph.- In the case stipulated in Paragraph V of Article 28 hereof, after judgment has been rendered, the divorce may be pronounced by any City Clerk of the jurisdiction of the Court in charge of the matter, upon presentation of a certified copy of the judgment, previously transcribed at the Civil Registry, and the provision thereof shall be published in a newspaper of nationwide circulation.

Article 32.- A judgment ordering a divorce by mutual consent shall not be subject to appeal; and for the execution thereof, the rules established in the Code of Civil Proceedings shall be complied with, in addition to the formalities set forth herein.

Article 33.- The spouses are obligated to file with the Court Clerk all documents pertaining to the action for divorce by mutual consent, in such manner as set forth in article twenty-eight.

CHAPTER V

Effects of Divorce

Article 34.- If the divorced spouses marry each other again, they may not adopt a marriage regime other than the one they had before.

Article 35.- A divorced woman may not remarry until ten months after her divorce has become final, unless her new husband is the same whom she divorced.

Article 36.- (Amended by Law N­2669 of December 31, 1950, O. G. 7231).- A spouse against whom a divorce is pronounced for any of the reasons set forth in sections d), e), f), g), and h) of article two, shall lose all the benefits accorded to him/her by the other spouse, whether by marriage contract, or during the marriage.

Article 37.- A spouse who has been granted divorce shall retain all benefits granted by the other spouse, even if those benefits have been reciprocally established and such reciprocity does not take place.

CHAPTER VI

Inadmissibility Exceptions

Article 38.- An action for divorce shall be extinguished upon the reconciliation of the spouses during such action or after it has been instituted.

Article 39.- In one case or the other, the plaintiff’s action shall be declared inadmissible; however, he or she may attempt a new action for a cause developed after the reconciliation; in which case, he/she may use the former causes to substantiate his/her demand.

Article 40. If the plaintiff claims that there has been no reconciliation, the respondent may prove that there has, whether in writing or by witnesses, in such manner as established in articles seven et sequitur.

Article 41.- The proceedings ordered by this law are prescribed under penalty of nullity, and all time periods established are exclusive of the day when the requirement is made and the day when the required action is supposed to take place.

CHAPTER VII

Article 42. (Amended by Law N­136 of June 23, O.G. 9616.58).- The provision of a judgment of divorce for cause shall be published in a local newspaper, not later than eight days after the divorce has been pronounced, including the mentions regarding the pronouncement of divorce, and a copy of such newspaper shall be filed with the Court Clerk within the eight days following such publication, under penalty of a one hundred pesos fine to the spouse who has obtained the divorce, without prejudice of any civil liability incurred on account of his/her negligence. If there is no newspaper in the locality where the divorce has taken place, the aforesaid provision shall be published in a newspaper of the nearest province or municipality.

Paragraph.- In the case of divorce for mutual consent, the obligations established in this article shall apply to both spouses, under the penalty stated above.

Article 43.- Divorce law number eight hundred and forty-three, enacted on February nineteenth nineteen hundred and thirty-five, is hereby annulled.