Family Law in Chile: Marriage, Divorce, and Annulment

Posted on Oct 26, 2024 in Law & Jurisprudence

Family Law Notes

Concept of Family

In legal terms, a family is a group of people related by marriage or a relationship recognized by law.

Lack of Legal Provisions

The family is the fundamental unit of society, according to Article 1, Section 2 of the Constitution and Article 1 of the Family Law.

Constitutional Definition of Family

As the core of society, the family is protected by the State, which safeguards national security and promotes family strengthening.

Family Law

Family law can be defined in two ways:

  • Subjective: Refers to the rights and powers arising from family relationships, ensuring that members fulfill the unit’s purposes.
  • Objective: Encompasses the norms and standards governing relationships between family members and third parties.

Characteristics of Family Law

  1. Ethical Content: Contains precepts without strict penalties (e.g., the right and duty of spouses to live together).
  2. Personal Conditions: Deals with inherent personal states like being a parent or spouse.
  3. Corporate Interest: Prioritizes the family’s interests over individual ones, making its rules mandatory.

Family Relationships

Family relationships are defined between two people through:

  • Blood relationship (consanguinity)
  • Relationship by marriage (affinity)

Blood Relationship

Based on blood ties or a common ancestor (Article 28, Civil Code).

Relationship by Marriage

Exists between a married person and the blood relatives of their spouse (Article 31, Civil Code).

Line and Degree of Kinship

Line: The sequence of relatives descending from each other (direct line) or from a common ancestor (collateral line). Example: Grandparent-parent-child (direct line); siblings (collateral line).

Degree: The distance between two relatives. Closer relatives have greater rights (e.g., inheritance).

  • Direct line: Counted by generations (parent-child: 1st degree; grandparent-grandchild: 2nd degree).
  • Collateral line: Ascend to the common ancestor and descend to the relative in question (siblings: 2nd degree).

Note: Affinity follows the same rules as consanguinity. A person’s line and degree of affinity with a blood relative of their spouse is determined by the blood relative’s line and degree with the spouse.

Example: A man is in the 1st degree of affinity (direct line) with his wife’s children from a previous marriage and in the 2nd degree of affinity (collateral line) with his wife’s sister.

Marriage

Derived from the Latin “matrimonium” (mother’s care) or “matreu moniens” (protection of the mother).

Civil Code Definition

Marriage is a solemn contract between a man and a woman, united indissolubly for life, to live together, procreate, and help each other (Article 102).

Elements of Marriage

  • Contract: Although debated, the State’s involvement through registration gives it a contractual nature.
  • Solemn Contract: Requires a registrar and two witnesses.
  • Man and Woman: Based on gender difference.
  • Indissoluble Union for Life: Despite the existence of divorce, Article 102 remains unchanged, considering divorce exceptional.
  • Purpose: Cohabitation, procreation, and mutual support.

Civil Marriage Law

Marriage and Church were separated in Chile with the Civil Marriage Law of 1885. Law 19,947 grants civil effects to marriages performed by religious entities with legal personality under public law.

Marriage Requirements

  • Requirements of Existence:
    • Different sexes
    • Consent and presence of a registrar
  • Requirements of Validity:
    • Free and spontaneous consent
    • Capacity of the parties
    • Absence of impediments
    • Compliance with legal formalities

Requirements of Existence

Absence of these renders the marriage non-existent (not null), requiring no court ruling. A putative marriage, despite being non-existent, can have the same civil effects as a valid one (Article 51, Law 19,947).

Marriage by Proxy

Consent can be manifested through representatives (Article 103).

Requirements of Validity

Consent Defects (Article 8, Law 19,947)

Error and force can invalidate marriage.

  • Error: Regarding the other spouse’s identity or personal qualities considered essential for marriage (e.g., impotence or sterility).
  • Force (Article 8, Law 19,947): Lack of free and spontaneous consent due to grave, unjust, and decisive force from an external person or circumstance (Articles 1456 and 1457, Civil Code).

Capacity and Impediments

Two types of incapacities:

  • Impediments: Obstacles precluding marriage; non-compliance results in nullity.
  • Prohibitions: Violations result in sanctions other than nullity.

Impediments

  • Absolute: Prevent marriage with anyone (e.g., dementia, undissolved marriage – Article 5, Law 19,947).
  • Relative: Prevent marriage with specific individuals (e.g., close family relationship, specific prohibitions – Articles 6 and 7, Law 19,947).

Prohibitions (Articles 105-116, 124-129, Civil Code)

Limitations resulting in sanctions other than nullity:

  • Consent for minors (Article 9, Law 19,947)
  • Guardianship (Article 116, Civil Code)
  • Remarriage (Article 124, Civil Code)
  • Special disability (Article 128, Civil Code)

Legal Formalities

Preliminary Formalities

  • Declaration of intent to marry
  • Information on marital rights and duties
  • Marriage preparation courses
  • Witness information

Contemporary Formalities (Article 15, Family Law)

Marriage must occur within 90 days of completing preliminary formalities. Otherwise, the process must be repeated.

  • Civil registrar officiates.
  • Two competent witnesses are required.

Post-Marriage Formalities (Article 19, Family Law)

  • Registrar declares the couple married.
  • Record is prepared and signed.
  • Marriage is registered.

Religious Marriages

For civil effects:

  1. Conducted by a recognized religious entity.
  2. Authorized minister officiates.
  3. Marriage certificate is issued.
  4. Certificate is signed by the minister.
  5. Certificate is submitted to a registrar within 8 days.

Termination of Marriage (Chapter 4, Family Law)

Causes

  1. Death of a spouse (Article 92, Section 1)
  2. Presumed death of a spouse (Article 42, Section 2)
  3. Declaration of nullity
  4. Divorce

Annulment

Grounds are exhaustive and must have existed at the time of marriage (Article 44, Family Law).

  • Impediments (Articles 5, 6, and 7, Family Law)
  • Lack of free and spontaneous consent (Article 8)
  • Incompetent witnesses or insufficient number

Action for Annulment

  • Must be declared in court.
  • Can be invoked anytime during the spouses’ lifetimes (Article 47).
  • Can be filed by either spouse, or by ancestors in case of underage marriage (Article 48).

Effects of Annulment

Spouses return to their pre-marital status (Article 1687, Civil Code).

  • Subsequent valid marriages remain valid.
  • No affinity is created.
  • No conjugal partnership exists.
  • No inheritance rights.
  • Children are considered illegitimate, unless the marriage is putative.

Putative Marriage

Requirements

  1. Non-existent marriage
  2. Concluded before a registrar
  3. Good faith of at least one spouse (awareness of a valid marriage)

Effects

Produces the same civil effects as a valid marriage for the spouse in good faith (Article 51, Family Law).

  • Children maintain double affiliation.
  • Effects on children are permanent.
  • Spouses have the same rights and obligations as in a valid marriage as long as good faith exists.

Divorce

Types of Divorce

  • Sanction Divorce: Penalty for a spouse’s serious misconduct.
    • Specific grounds
    • Generic grounds
  • Remedy Divorce: Solution to an irreparable breakdown of marital harmony.
    • Mutual consent
    • Unilateral

Sanction Divorce (Article 54)

Based on serious violations of marital duties or duties towards children, making cohabitation intolerable. Includes specific examples (e.g., attempts on life, abuse, infidelity, neglect, criminal convictions, homosexual conduct, substance abuse, attempted prostitution).

Remedy Divorce (Article 55)

  • Mutual Consent: Requires cessation of cohabitation for over one year and full agreement regarding children.
  • Unilateral: Requires cessation of cohabitation for at least three years, proof of support provided during separation, and compliance with specific documentation requirements.

These rules apply even to marriages prior to Law 19,947 (November 11, 2004).