Where one or both divorcing spouses have a legal or other kind of connection to Chile the process can become complicated. Both the laws of Chile and those of England can potentially dictate the financial settlement and arrangements for children. Here we look at some aspects of Chilean divorce law to demonstrate why it might be necessary to obtain specialist advice from an international family lawyer before you embark on the divorce process in England.
Grounds For Divorce In Chile
Divorce in Chile is a relatively new procedure – first introduced in 2004. There are three ways to petition for a divorce:
- Mutual agreement following one year’s separation. Here the couple getting divorced must sign a post-nuptial contract. The court reviews this agreement to ensure that each side’s rights under the law, including property rights have been fully protected.
- Unilateral request.If the couple has been living apart for at least three years one spouse can seek a divorce. As with divorce by mutual agreement all matters, including property division, children arrangements and spousal maintenance must be finalised at the same time as the decree of divorce.
- One party can seek a divorce where one spouse is in serious violation of the duties and obligations imposed by marriage. While it’s open to a spouse to apply for divorce on a fault basis at any time without the need to prove a period of separation the bar set to establish fault is high. The spouse alleging fault must not only show that there has been a violation of marital duties. He or she must also produce evidence that the violation is so serious that it has made living together intolerable.
Property Division Following Divorce In Chile
Pre-nuptial agreements have little effect in Chile and are rarely used. The way property is divided on divorce depends on the property regime the couple chooses on registering their marriage. They can elect one of three regimes:
- Complete separation of property so neither spouse has any right to the other’s property on divorce
- Marital partnership.Where assets acquired during the marriage are divided equally on divorce
- Joint property.Spouses control the assets they each acquire during marriage as if they are separate assets. On divorce all assets acquired during the marriage are split equally
‘Economic Compensation’ In Chile
When divorce was introduced in Chile in 2004 it was accompanied by what’s known as the principle of economic compensation. Crucially this applies independently of what marital property regime the couple opted for at the time of their marriage. The effect of the doctrine is to compensate a spouse who stays at home to look after children and the household and as a result misses out on building up a career. Under the rules he or she is entitled to compensation from the date of divorce for the economic loss he or she has suffered.
Courts in Chile are restricted in the ability to order payment of maintenance. In practical terms it is usually only ordered when a spouse does not have the means to support him or herself and then only at a very basic level. The obligation of a spouse to maintain the other actually terminates on divorces.
Child Custody After Divorce In Chile
The Chilean Civil Code promotes co-parenting in the event of a divorce where there are minor children. When deciding on custody (i.e. where the child should live) Article 225 of the Code lists the following as the factors to be considered:
- The emotional bonding with each parent and others within the family setting
- Each parents’ fitness to protect the child’s rights
- Contributions made to the support of the child while he/she was under the charge of the other parent.
- Co-operation of each parent with one another
- Dedication to the child before the break up
- The opinion of child-experts
- Parents’ domicile.
- Other relevant background matters
The Chilean courts place significant weight on the views of the child, and the children have the right to be heard in court proceedings (through their own representative if necessary). The courts have set aside child custody orders that were reached without reference to the views of the child.
Getting Advice On Chilean Family Law
Here at Brookman we understand the cross-border issues that could affect the outcome of your divorce in England. Even if we do not have direct experience of the laws in a particular jurisdiction we are so accustomed to dealing with legal jurisdictions across the globe that we will be able to provide you with the type of advice you need if there is an international angle to your case.
Or call us: +44 (0)20 7430 8470