Libro Primero · Título II · Capítulo I Párrafo VII. De la separación y del divorcio

Marriage is modified by separation and is dissolved by divorce.

The separation of persons, as well as divorce, may be declared:

1.By mutual agreement of the spouses; and

2.By the will of one of them upon determined cause.

Separation or divorce by mutual agreement of the spouses may not be requested except after one year, counted from the date on which the marriage was celebrated.

The common grounds for obtaining separation or divorce are:

1.Infidelity by either spouse;

2.Physical mistreatment, continuous quarrels and disputes, serious insults and offenses to honor and, in general, conduct that renders life together unbearable;

3.An attack by one spouse against the life of the other or of the children;

4.Voluntary separation from or abandonment of the marital home or unjustified absence for more than one year;

5.The fact that the wife gives birth during the marriage to a child conceived before its celebration, provided that the husband had no knowledge of the pregnancy before the marriage;

6.Incitement by the husband to prostitute the wife or to corrupt the children;

7.The unfounded refusal of one spouse to perform, with respect to the other or to the common children, the legally required duties of support and maintenance;

8.Dissipation of the household estate;

9.Habits of gambling or drunkenness, or the improper and constant use of narcotics, when they threaten to cause the ruin of the family or constitute a continual cause of marital discord;

10.A complaint of a crime or calumnious accusation made by one spouse against the other;

11.The conviction of one of the spouses, in a final judgment, for a crime against property or for any other common crime punishable by a penalty of more than five years of imprisonment;

12.Serious, incurable and contagious illness, harmful to the other spouse or to the offspring;

13.Absolute or relative impotence for procreation, provided that by its nature it is incurable and subsequent to the marriage;

14.Incurable mental illness of one of the spouses sufficient to declare interdiction; and

15.Likewise, the separation of persons declared in a final judgment is a ground for obtaining divorce.

Abandonment is presumed voluntary and absence is presumed unjustified as referred to in paragraph 4 of the preceding article. The action may be brought by either spouse.

Acts of infidelity committed in connivance or with the consent of the other spouse are not cause for separation or divorce, nor when, after having been consummated and known to the other, the spouses have continued cohabiting.

Who may request separation or divorce for determined cause

Divorce and separation may only be requested by the spouse who has not given cause therefor, and within the six months following the day on which the facts on which the claim is based came to that spouse's knowledge.

Divorce or separation may not be declared on the mere acquiescence of the respondent party. Likewise, the confession of the respondent party concerning the cause motivating it is not sufficient evidence to declare the divorce or separation.

The common civil effects of separation and divorce are the following:

1º.The liquidation of the conjugal patrimony;

2º.The right to maintenance in favor of the innocent spouse, where applicable; and

3º.The suspension or loss of parental authority, when the ground for separation or divorce entails it and there is an express petition by an interested party.

The following are effects proper to separation, in addition to the subsistence of the conjugal bond:

1.The right of the innocent spouse to the intestate succession of the other spouse; and

2.The right of the woman to continue using the husband's surname.

The proper effect of divorce is the dissolution of the conjugal bond, which leaves the spouses at liberty to contract a new marriage.

From the moment the petition for separation or divorce is filed, the woman and the children shall remain under the protection of the authority for the security of their persons and their property, and the urgent measures that are necessary shall be ordered. The children shall remain provisionally in the custody of the spouse determined by the judge, until a final decision is reached, unless serious causes require entrusting them to a provisional guardian.

If separation or divorce are requested by mutual agreement, the spouses shall present a draft agreement on the following points:

1.To whom the children born of the marriage are entrusted;

2.At the expense of which of the spouses the children shall be supported and educated, and when this obligation falls upon both spouses, in what proportion each of them shall contribute;

3.What pension the husband shall pay to the wife if she does not have her own income sufficient to cover her needs; and

4.Guarantee to be provided for compliance with the obligations assumed by the spouses under the agreement.

For the purpose expressed in the preceding article, the judge, under his responsibility, must assess the guarantee, and if in his judgment it is not sufficient, he shall order its enlargement, so that what is stipulated satisfactorily secures the obligations of the spouses.

If separation or divorce is sought on a specified ground, the judge shall decide the matters referred to in Article 163; but, both in this case and in the case of mutual agreement, separation or divorce shall not be declared until the support and education of the children are sufficiently guaranteed.

The parents may agree to whom of them the children are entrusted; but the judge, for serious and reasoned causes, may decide otherwise, taking into account the well-being of the children. The judge may also decide on the custody and care of the minors, based on studies or reports of social workers or of organizations specialized in the protection of minors. In any case, the judge shall ensure that the parents may communicate freely with them.

Whatever the stipulations of the agreement or of the judicial decision may be, the father and the mother remain subject, in any case, to the obligations they have toward their children and retain the right to maintain relations with them and the obligation to supervise their education.

At any time the judge may issue, at the request of one of the parents or of the blood relatives, or of the Public Prosecutor's Office, such orders as the judge considers beneficial for the children and as are required by new facts.

The innocent woman shall enjoy the alimony referred to in Subsection 3 of Article 163, which shall be fixed by the judge, if the spouses do not do so, taking into account the means of the person who must provide it and the needs of the person who is to receive it.

The woman shall enjoy the alimony while *she observes good conduct and does not contract a new marriage; and the innocent husband shall have the same right, only when he is unable to engage in work that provides him with a means of subsistence and does not contract a new marriage.

When the judgment declaring the insubsistence or nullity of the marriage, or separation or divorce, becomes final, the conjugal patrimony shall be liquidated in the terms prescribed by the capitulations, by the law, or by the agreements entered into by the spouses.

The divorced woman has no right to use her husband's surname.

The effects and consequences of the insubsistence or nullity of marriage, as well as those of separation and divorce, shall be governed, with respect to persons, by the laws of the country where they have been decreed.