New Bill on Administrative Divorce

A new Bill has been published last October 14, 2024, proposing to modify some essential issues regarding divorce proceedings by modifying some articles of the Civil and Commercial Code (CCC) and of Law 26413. In particular, the Bill proposes a new alternative for individuals to seek their divorce in a simpler way and without the need to go to court, in certain specific cases. The Bill does not intend to exclude the intervention of courts definitively; it incorporates a new option to facilitate the process when the case is not complex and the decision is made by mutual agreement of the spouses.

The causes for marriage dissolution are currently established in the three paragraphs of article 435 of the CCC: “a) death of one of the spouses, b) final judgment of absence with presumption of death, c) judicially declared divorce.” The Bill seeks to incorporate a new paragraph d) with this alternative: the joint petition of the spouses before the competent administrative entity.

To undergo this administrative proceeding, both spouses must agree to file their petition for divorce before the administrative entity corresponding to the last matrimonial domicile (i.e., the registry in charge of registering in such jurisdiction the matters related to the civil status of individuals). If the Bill becomes a law, the dissolution before the administrative body would have the same effects as that of a divorce sentence.

The  bill also proposes amending two related rules: article 437 of the CCC and article 51 of Law 26413, which regulates the activity of the Registry of Civil Status and Capacity of Individuals. These amendments aim to recognize the legal standing to file the joint administrative petition and to make such proceeding compatible with the subsequent registration.

The Bill does not establish other requirements to be fulfilled in the petition. In divorce proceedings before courts, it is necessary to propose a regulatory agreement regarding the effects of the divorce, according to article 438 of the CCC. Since article 438 is not amended in the Bill, it could be affirmed that the spouses who request the administrative divorce bilaterally will not have to make statements about their agreement regarding the effects of the divorce.

It also does not contemplate the possibility of transferring to the administrative entity the conflicts and issues that may arise from the divorce. Therefore, among others, the effects of the dissolution of the matrimonial property regime in general, the potential allocation of the family home, the distribution of assets, possible economic compensations, the exercise of parental responsibility and potential alimonies between ex-spouses, or child support to the children in common would remain in the judicial sphere.

It should be noted that the Bill does not intend to eliminate the divorce proceedings before courts, which will remain in force, as well as their applicable rules.