Since adopting the new Civil Code on the 28th of November 2020 through the adaptation of the public law number 55 of the 1st of June 2020, the island has become a no fault divorce jurisdiction. The new civil code limits divorces to two specific causes, that is Mutual Agreement and Irreparable Rupture. In this post we’ll take a look at both causes available, the specific requirements of both, as well as the general requirements and processes in obtaining a divorce in the Island of Puerto Rico.
Before this change in our most basic of laws, Puerto Rico had several causes for which a person, normally the “innocent” party, could petition for divorce. Amongst those causes were:
2) Separation for more than 2 years
3) Abandonment for more than a year
4) Cruel Treatment
5) Habitual Drunk
Accordingly, the party who sought the divorce would have to give, sometimes in great detail, testimony in support of the alleged cause. However, in the landmark case Ex Parte, Sonia Figueroa Ferrer y Roberto Morales Morales, resuelto el día 15 de mayo de 1978 (107 D.P.R. 250), the Puerto Rico Supreme Court adopted the cause of divorce by mutual agreement, as well as made mentioned of the cause of Irreparable Rupture. This recognizing the right to privacy of the parties involved. Since then, most of the other divorce causes fell into disused given way to their elimination in the New Civil Code.
Divorce by Mutual Agreement
Article 425 (a) of the new Civil Code, (31 L.P.R.A. 6772) states that a divorce may be petitioned before a court through a joint petition where both parties give their consent. That is to say that both parties have to sign the petition under oath before submitting it.
A little further on the new civil codes enumerates the content of a joint petition that must be present in order for the court to be in a position to grant the divorce. In article 429 of the Code (31 L.P.R.A. 6776) it states that the petition for divorce must include a signed and sworn agreement stating:
(a) the willingness of both parties to divorce;
(b) how the parental authority of the minor children born to the marriage shall be exercised;
(c) how the custody of minor children born into the marriage shall be exercised, whether by one or the other of the parties, or jointly;
(d) how the tutorship or extended parental authority over adult children who have been incapacitated, and the custody of the same, shall be exercised;
(e) how child support for minor children, or incapacitated adult children, as well as their needs shall be taken care of;
(f) the way each spouse shall relate (visitation rights) to their children that do not reside with them;
(g) how the economic situation of each spouse shall be attended;
(h) how will the community property actives (properties) and passives (debts), be adjudicated, as well as how the economic relationships of each ex-spouse shall be regulated;
(i) other necessary consequences of the divorce.
It is necessary to point out that if the parties do not come to an agreement on all of those points, they will not be able to obtain a divorce by Mutual Agreement, for which the only alternative left is to proceed with a divorce for Irreparable Rupture. Even if the parties reach a full agreement, article 432 of the Code (31 L.P.R.A. 679) prohibits a judge from granting a divorce if the court determines that one of the spouses will not receive adequate protection in said agreement. Only after adopting the necessary measures to ensure a just and equitable treatment of the parties will the court grant the divorce.
Divorce for Irreparable Rupture
Article 425 (b) and (c) of the new Civil Code, (31 L.P.R.A. 6772) state that a divorce may be petitioned before a court through a joint petition, or individually, for the irreparable rupture of the bonds of matrimony. This is the only cause for divorce available if one of the parties does not want to participate, or if their whereabouts are unknown. Just as with the divorce by Mutual Agreement, the petition has to be signed under oath, either by both parties or by the petitioning individual.
Unlike the enumerated requirements for the petition by Mutual Agreement, a joint petition for divorce for Irreparable Rupture only requires that if the parties acquired community property or debts, the same should be inventoried and valued in order to present with the petition. If no property or debt was acquired during the marriage, this step can be skipped.
On the other hand, it is important to note that in Puerto Rico, if there are minor children or incapacitated adult children, product of the marriage, the court will not grant the divorce until a proper child support obligation has been established, either by agreement or through a hearing before a court examiner of child support obligations. Usually the hearing of the examiner occurs before the divorce hearing.
These requirements are not as strict, or are completely eliminated, when the petition is filed by only one party.
