Divorce Laws for Mexican Marriages
by Lic. J. Beaulne LL.B
CONSEQUENCES OF MARIAGE OR “LIVING IN SIN” at time of separation.
Foreigners come to Mexico to get married and go back to their home land or once established here find someone local to get married to or to live with and live in Mexico.
Consequences in case of divorce or separation?
In every country there are laws that provide guidance to the Courts regarding divorce procedures when the marriage was celebrated in a country other than where the divorce procedures are initiated. Said laws normally follow international private law principals and most of the time the rule is that the judge who receives the request must look at the rules where the marriage was celebrated and pronounce the divorce as per the rules where the parties married. In Mexico both parties are entitled to alimony. The amount is set according to the income of the one who must pay. The judgment (called Sentence) is not definitive, it can be appealed or one can present a new request to have it reduced or augmented.. Before judgment is pronounced a Social Worker will visit and interview each party to establish a social-economic report. Judges will take in consideration said report and all the proof that were presented, age of the parties, duration of the marriage.
Two marital regime are possible: Separation of goods or Community of goods.
Separation of goods regime exist when a marriage contract (prenuptial agreement) was signed in front of a “Notario Publico” (contract lawyer), in this case the judge must apply the wish of the parties regarding the goods as per the contract.
Community of goods exist in the event that no such contract was drafted, the property of the goods is established by Law, each party owning 50% of every thing acquired after the date of marriage.
In Mexico during divorce procedure it is important to know that one must be careful of not providing proof a liaison, the offended party can request and obtain the custody of the children in such case and once divorced both parties can not remarry during the next two years.
Living together arrangement (common law) :
After five years both parties are considered husband and wife at time of death. In other words both have the same right to inherit as married spouses.
No alimony needs to be paid,
At death if there is no Will and Testament the surviving spouse is the owner of all he goods acquired during the marriage once the probate process is done and a “Notario Publico” emits a document indicating that the surviving spouse is the legal owner of the goods, in the event that children where either adopted or created they will also inherit.
Common law partners: If the union is proven to be more than five years the surviving one is considered a spouse and is entitled as such and the same rule applies to the children created by a married couple.
Alimony and child support:
If one is sentenced to pay a certain amount and does not the other party can present a penal denunciation and have the party who is in default to enjoy the premises of the jail for up to 3 months. If one’s financial situation does not permit him or her to pay what was established but does prove that his or her income has lowered and pays a reasonable amount the case normally will not proceed.
In the event that there are children (natural or adopted):
They are entitled to child support until the age of 18 and further on if they are in school. In the event that a child has an handicap monetary support can be for life. Both parents are responsible for child support, in the event that the parents are not capable of supporting the child the grand parents can be requested to do so.
Default in paying the alimony or child support:
In Mexico this is considered a crime. If one is sentenced to pay a certain amount and does not the other party can present a penal denunciation and have the party who is in default to enjoy the premises of the jail for up to 3 months. If one’s financial situation does not permit him or her to pay what was established but does prove that his or her income has lowered and pays a reasonable amount the case will not proceed but stays pending. In such a case one should not only deposit the money but provide to the “Ministerio Publico” (DA) at the “SAM” organization (government organization to protect mother’s and child) copy of the deposit receipt so as to inform them that a payment was made so as to proof good faith.
A new jurisprudence indicates that the one who receives the child support must account for the money received, in other words receipts have to be presented if requested by the paying party so as to assure that the funds are used for the child only.
Custody of child:
In Mexico a child twelve years of age or more can be asked by the judge with whom he wishes to live. Normally the mother has the guardianship of the child but this can be reversed in the event that the other party proves of wrong doing to the child or having a relation with someone during the divorce procedure. By law the parent that does not have the custodianship of the child has by law visiting Rights which can be dictated by the Tribunal.
If one of the parents wants to have the custody he must present to the Tribunal a request and prove that the other party is doing prejudice and damages to the child and also prove that he can provide a better life of the child.