Divorce in Venezuela, what is all about?

Let's start this article by talking a little about history. In 1973 the president of Venezuela at that time, Antonio Guzmán Blanco, promulgated the Marriage Law, which was in force until 1982 and it was during all this time that nuptials in Venezuela were considered perpetual and indissoluble. Then, from the year 1982, the figure of Divorce-Remedy was created, having to meet certain requirements to be able to divorce and if the divorce was not by mutual agreement, the process was unpleasant and exhausting for couples, extending overtime necessary. Currently, there are several types of divorces in Venezuela, the separation of bodies, mutual agreement, contentious demand, and divorce due to disaffection, which is what is known as the new express divorce. The first two types of divorces mentioned above are still in force, but they are practically in disuse and the contentious divorce is almost not used anymore because divorce is a different process from the process regarding the separation of assets and the process to obtain the Parental authority (in case of having minor children within the marriage). Divorce due to disaffection occurs when you want to divorce because there is no Affectio Maritalis or what is the same, there is no longer love because the sentimental and emotional bond disappears. Since lack of love cannot be proven, this type of divorce does not admit evidentiary activity, it does not require an adversarial and it is not subject to an appeal, therefore, it proceeds unilaterally, that is, only the signature of the plaintiff is enough to the divorce proceeds. The defendant's signature is not required. So the most common thing currently in Venezuela is to divorce due to a lack of love or disaffection.

Which court should I go to?

If there were no children within the marriage or if you had them but they are of legal age, the divorce petition must be filed by the Municipal Courts. If there are children and they are minors, you must file for divorce through the Courts for Boys, Girls, and Adolescents (LOPNNA). The Courts must be from the area where you lived with your spouse or, failing that, in the city where you were married.

Procedure for divorce due to disaffection

You must go to the competent Court and introduce the following documents: 1. The letter of demand with the data mentioned above. 2. Copy of the identity card of each spouse. 3. The marriage certificate. Then the respondent or attorney (the person seeking a divorce or their legal representative) will receive notice from the court to attend in person. The court will tell you what to do to sign and finalize the divorce decree. The time that this type of divorce takes can vary, depending on the volume of work that the Court has and the management that your lawyer does. In general, it can go out between a week and two months.

Who signs in a divorce due to disaffection or lack of love?

The plaintiff or the attorney must sign in case of giving Power of attorney for divorce due to disaffection. So, if you grant a Power of Attorney, you do not need to sign. The defendant (your partner) does not sign, they are only notified, they are not cited in the divorce due to disaffection; This procedure is independent of whether your partner wants to divorce or not. You must bear in mind that the divorce decree must be registered in the Public Registry, otherwise, you will remain married and will not be able to remarry.

Divorce due to disaffection, What to do when there are minor children within the marriage and one of the parents is out of the country?

When the children are of legal age or simply there are none, the defendant is not summoned, he is only notified, but in the event that there are minor children within the marriage, the defendant must be represented by a lawyer. They are summoned if they are outside the country, and a video call is made to ask them questions regarding the family regime and thus assess their opinion. When one or both spouses are abroad, a Power of Attorney will need to be granted and it will have a price and a procedure depending on the country where you are. If you are abroad, the lawyer who will represent you in Venezuela must send you the power of attorney, which you must sign before the Venezuelan Consulate, for the purpose of apostilling it. The requirements vary depending on the consulate in question, however, what is unequivocal is the presentation of the document drawn up and endorsed by a Venezuelan lawyer, preferably, together with the passports or identity cards of the person granting the power (principal) and of the people to whom the mandate is entrusted. It will be necessary to pay consular fees for the processing of this document before the consulate, however, some payments are exempt, such as those related to legislation on the protection of children and adolescents.

Keep in mind that consular officials are legally prohibited from providing drafting services to users of the consular service, for which it is necessary to contact a lawyer in Venezuela to manage the advice and drafting of the document. In the event that the document is drawn up by a lawyer from the country in which the principal is located, it must be reviewed by a Venezuelan lawyer, since the formalities required in Venezuela must be complied with.

If the power of attorney has been granted in a language other than Spanish, it must be translated by a Public Interpreter in Venezuela (in certain cases, this Interpreter must make a sworn statement before a notarial official in Venezuela about the translation of the document). In the case of the granting of a power of attorney abroad that is part of the Protocol on uniformity of the Legal Regime of Powers of Attorney (Bolivia, Brazil, Colombia, El Salvador, Mexico, Nicaragua, Panama, Paraguay, USA, and Venezuela) and of the Convention Inter-American on the Legal Regime of Powers of Attorney to be used abroad (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay, and Venezuela) it will not be necessary for Venezuela to legalize and apostille it. In our Venezuelan reality, on certain occasions, when the representative in Venezuela intends to exercise the representation that has been conferred on him abroad, there are Venezuelan Registrars and Notaries who demand the authentication and registration of this document in Venezuela, despite the fact that our country it is part of the protocol and the Hague Convention. The Power of Attorney will be sent from the country where it has been apostilled to Venezuela, that is, it arrives at the consulate, for example, if you are in Peru, the Power of Attorney will arrive at the Peruvian consulate in Venezuela. After your lawyer has the power in his hands, he can begin to carry out the necessary process for the respective divorce. There are countries, such as Canada, in the city of Ottawa, where the special powers are done by a lawyer from Venezuela, online.

I want to get divorced, but I don't know where my partner is

When your spouse is missing, steps must still be taken to locate and notify him. In this sense it is recommended: 1. Verify the identity card at the CNE to verify if he is alive. 2. Search for it and notify it through Social Networks. 3. Notify via family. 4. You can request the competent court to officiate the Saime to locate your partner's migratory movements and notify him/her with a post in a newspaper. 5. Look for the marriage certificate in the Registry where you were married and with that you divorce due to disaffection, but change the notification model by talking to the bailiff. Even though Sentence 1070 of December 9, 2016, gives priority to the free development of personality (divorce due to disaffection) before notifying your partner, in the same way, everything possible must be done to send the notification, it is said for the record.

Recommended jurisprudence

Judgment No. 446 of May 15, 2014 The Constitutional Chamber establishes that if the spouses were separated for more than 5 years, one of them may request a divorce alleging a prolonged break in common life, as long as the other spouse does not deny or contradict the allegations of their partner and if they deny them You have to prove it and the process is not declared finished as was the old interpretation of the last paragraph of Article 185-A. Judgment No. 693 of June 2, 2015 The Constitutional Chamber of the Supreme Court of Justice establishes that the grounds for divorce in article 185 of the civil code are not exhaustive or that it is the same, that they can be discussed. So either spouse may file for divorce for any situation or cause that prevents the continuity of life together. Judgment No. 1070 of December 9, 2016 The Constitutional Chamber of the Supreme Court of Justice establishes that either spouse may file for divorce for any reason, including disaffection. Judgment No. 305 of May 18, 2017 The Civil Cassation Chamber of the Supreme Court of Justice establishes that since lack of love cannot be proven, in divorce due to disaffection there is no appeal, which means that the will of one of the parties is enough for the divorce to proceed and discussion is not allowed. Jurisprudence is what helps judges to resolve disputes, taking into account the custom and decisions of higher courts, which in similar cases can be applied in the same way. Only the Supreme Court of Justice can create jurisprudence through its explanatory decisions or judicial resolutions and these decisions have a direct influence on the lower bodies that they must abide by in order to interpret and apply the corresponding law.

María Alejandra Tuozzo M.

Venezuelan Lawyer