On February 3rd, bill 20406 was approved in the first debate, which bears the name “Addition of a subsection 9 to article 48 of the Family Code”, also known as the Law for the Claim of the Autonomy of Freedom in the Divorce Process”, that allows the incompatibility as cause of divorce.

According to the text of the project, the new subsection of the Family Code will read as follows:

“9) The request of one of the parties due to the impossibility of making life in common.”

This bill is due to the fact that, at the discretion of the promoting congressmen, marriage is the result of the exercise of the autonomy of freedom and implies a free consent of both parties, which is essential for its legal validity; However, when one of these wills changes, the marriage is not dissolved. That is to say, in spite of the fact that the cause for the extinction of the marriage bond exists, our family law does not yet contemplate this possibility.

According to the promoters, there is a contradiction from the legal point of view, since marriage is a figure that is born into legal life from the free agreement of two wills, but which can only be dissolved by the mutual consent of the spouses, according to subsection 7 of the same article 48 of the Family Code.

It is clear that this situation generates an inequality between those who are united in marriage and, of course, produces a violation of the legal principle of the autonomy of the will, since it is forcing a person to remain married, although the person’s will has changed. This contradiction is what has generated a vacuum in our legal system for decades, which would be solved with the final approval of this bill.

At present, with the grounds of divorce in force, if a person intends to break the marriage bond, if there is no mutual agreement, they must separate and wait three years after they have actually separated, or one year after they have declared the judicial separation to be able to request the incompatibility as cause of divorce.

One of them must leave the marital domicile without any right over common assets and must wait to be able to claim their own property and that is also the result of their contribution. The simple fact that for one of the parties it is impossible to sustain life in common should be sufficient for the dissolution of the marriage bond, since it implies that the marriage has ceased to fulfill its reason to be.

The second debate of this project is about to take place, and is very likely to be approved, thus ending an inequality caused by the system that currently governs divorce matters.

If you require assistance in divorce proceedings, or in any other matter related to family law, do not hesitate to contact us.