Family law in Argentina: overview

A Q&A guide to family law in Argentina.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

Diego Horton, Perez Maraviglia & Horton Abogados
Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

Argentina is a Federal Republic, ruled by the National Constitution of 1853 and its amendments, the latest passed in 1994. The constitution was inspired by the US Constitution and the liberal doctrine of the time. Under this model, the country's states, known as provinces, are each ruled by their Provincial Constitutions and local provincial laws. Therefore, both the Federal Government and the Provinces have their own legal and judicial systems.

The Civil Code (deriving from Roman law) is a federal law and the main legal instrument governing family law. The primary sources of law are statutes passed in Congress. Statutory rules are arranged in the following hierarchical order:

  • National Constitution.

  • International treaties embodied in domestic laws after being approved by Congress.

  • National federal laws.

  • Provincial laws.

  • Municipal laws.

There are also formal or mandatory sources of law in jurisprudence and case law created by the different Courts of Appeal's plenary rulings and Supreme Court judgments, as well as custom secundum legem (according to law) or custom referred to by the law.

Specifically in relation to family law, case law has grown to be a very powerful instrument and in many cases the primary source of new laws passed in Congress. Many changes to family law were first accepted by the courts and later adopted by the laws that amended family law institutions along the lines set by judicial precedents. Case law has the advantage of being more dynamic than statutory law and can uphold the obligation to impart justice in each particular case. Case law adopts modern changes in legislation to adapt the law to the new social, economic and political realities of the country.

The Civil Code is still the main source of family law, complemented by both national and provincial legislation which either:

  • Have been inserted in the Civil Code as amendments.

  • Supplement the Code's principles as independent complementary laws.

There are also some provinces that have procedural laws which serve as main laws to resolve overall conflicts. For example, the law against domestic violence (a procedural law only valid in some provinces), establishes a rapid procedure to stop the initial violent acts (that is, to obtain a restraining order) and a subsequent procedure to address the causes of violence, together with therapeutic solutions to resolve the problems.

Matrimonial law has traditionally been ruled by the Civil Code, together with subsequent amendments and incorporations to the Code. The first matrimonial regulation was enacted as Law 2393 in 1888, followed by the laws approving the Montevideo Treaties of 1889 and 1940, which supplemented the primary legislation with different matrimonial rules to be applied between citizens of different nationalities. With the return of democracy to Argentina in 1983, Law 23264, enacted in 1985, introduced major changes in matters of children and minority. In addition, Law 23515, enacted in 1987, established major changes in marriage legislation, incorporating divorce for the first time in Civil Code history, as a cause of marriage dissolution allowing divorced spouses to remarry under the same legislation.

More recently, in 2014, Law 26.994 was passed, which will come into force from August 2015. Law 26.994 makes some major reforms to the Civil Code in general, and in the field of family law in particular.

There are other laws governing different related matters such as adoption (through a substantial amendment to the Argentine Civil Code made by Law 24779, in 1997), child and adolescents rights protection, passed in Congress as Law 26061, and domestic violence laws, enacted as Laws 26485 and 26486, protecting life, physical integrity, personal safety and dignity, of all family members. There are also criminal laws 13944 and 24270 which protect alimony payments to beneficiaries, ensure visitation rights for non-custodial parents, and punish parents who breach child support agreements and who impede non-custodial parents from visiting the child.

In July 2010, by enacting law 26618, Argentina became the first country in Latin America to allow and regulate same-sex marriage.

Court system

There are family courts in every jurisdiction in the country. In some provinces there are sole instance courts integrated by three judges, with no Court of Appeal. Proceedings are always held privately.

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

Different sections in the Civil Code determine the law of the last marital domicile as the applicable law and court jurisdiction in cases of personal separation, divorce and marriage nullity. In a federal country like Argentina, this principle applies within the provinces: while the applicable law is always the Civil Code as a national law, the court with jurisdiction is the provincial court where the last marriage residence was settled. Marriage dissolution cases are governed by the law of the spouses' last marital residence. However, if the last marital residence was located in a foreign country, the parties may file for divorce in that country, and then register the foreign court judgment with the Argentine Civil Registry, with the intervention of the Argentine judge in receipt of all foreign certified divorce documents.

In relation to the international jurisdiction of courts in private law, the Civil Code establishes that filings for divorce and marriage invalidity, as well as those relating to the effects of marriage, may be brought before the court of the last actual marital residence or before the court of the respondent spouse's residence, opening a potential concurrent jurisdiction.

Property

The rules of international jurisdiction applicable to divorce apply in relation to marital property. The applicable law relating to marriage covenants and marital property is governed by the law of first marital residence, and concerns everything that, in matters of real property, is not prohibited by the law of marital property location. That is, the law of the jurisdiction of first marital residence cannot be contrary to the law of the jurisdiction in which the property is located. The latter prevails.

Children

Argentine law provides that the right to receive alimony and child support, as well as the eligibility, opportunity and scope of the alimony and child support agreement, if any, is governed by the law of marital residence. Alimony and child support payments are regulated by the law of the respondent's domicile. The option clearly benefits the claimant for alimony and child support by allowing a wide range of alternative courts for the beneficiary to resort to. Parental rights are governed by the law of the place where these rights are exercised. The legal principle of court effectiveness establishes, for example, that visitation rights must be filed before the court of the child's habitual residence to ensure quick and effective jurisdictional protection.

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

In Argentine family law the concept of domicile, as a formal notion (or even a contractual stipulation), is only used in settlements that are formally submitted to the judge for approval. In all other cases, habitual residence is the legal notion applied to jurisdiction and applicable law. Domicile can be home, where the family has settled, or where the child's habitual residence or the parent's habitual residence is. However, it is the nature of family law to ensure court proximity and effectiveness to the family to make sure the law is applied correctly and protects the rights of all family members. Therefore, the concept of habitual residence always prevails as a real family law concept, rather than a domicile that may be formally established, but not necessarily the place where family interactions occur.

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

The National Commerce Court of Appeal decided that issues relating to international jurisdiction are resolved by:

  • Specific rules of a conventional or domestic source.

  • Standards deriving from the jurisdiction based on domestic venue.

  • Case law issued by Argentina's Supreme Court of Justice for the resolution of jurisdictional issues.

To examine jurisdictional matters, the court must:

  • Determine if there are legally binding treaties between the two or more potential jurisdictions that define and address the issue.

  • If there is no binding treaty dealing with jurisdictional matters, examine international private law provisions on jurisdictional matters and determine the connection points of the particular case with each potential jurisdiction to decide whether to decline or accept jurisdiction.

In cases of concurrent jurisdiction, it is advisable that the judge only has jurisdiction if the action was filed first, or where the governing law coincides with the jurisdiction (if the applicable law governing the case is foreign law, intervention by the foreign court may prove to be more convenient).

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

From August 2015, under Law 26.994, pre- or post-nuptial agreements (as understood in international civil law) will be regulated in Argentina. From August 2015, prior to their marriage, the parties can:

  • Designate property that each spouse will contribute to the marriage.

  • Designate the donations and gifts that will be made by the husband to wife.

  • Determine their debts.

  • Choose between two regulations of marital property to rule their marriage:

    • community system (that is, the traditional marital property system); or

    • separate patrimony.

After the first year of marriage, the spouses can modify their agreements and can choose to switch to the other system (for example, from community marital property to separate patrimonies).

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

Argentina's legal system recognises marriages that take place in foreign countries under foreign rules, provided the legal requirements established for marriages that take place in Argentina have been complied with in the foreign country, and no legal impediments have occurred.

Divorces/annulment

Separation of property and marriage dissolution cases are governed by the law of the spouses' last marital residence. Therefore, if the last marital residence is located in a foreign country, spouses obtaining a divorce judgment in a foreign country then register that foreign court judgment before the Argentine Civil Registry with the intervention of the Argentine judge who will have received all foreign certified divorce sentence documents.

Civil partnerships

As with marriage cases (see above, Marriages), Argentine law requires, after the Civil Code recent amendment, that foreign civil partnerships should register their partnership before the local Registry.

Divorce

7. What are the grounds for divorce?

The ability to dissolve marriages through divorce was introduced in 1987. Following the 2015 amendment to the Civil Code, personal separation is not possible ground for terminating marriage. Therefore, there are now two different forms of marital dissolution:

  • Divorce.

  • Marital nullity.

Divorce

Divorce (dissolving marital ties and releasing the parties to remarry) has now mainly two forms of process:

  • Unilateral divorce. Using this process, either party can file a petition for divorce against the other spouse, with no particular fault cause (under the 2015 amendment to the Civil Code, there are no fault divorce causes).

  • Joint divorce. Using this process, both parties can jointly file a petition for divorce and also obtain a no-fault divorce decree.

Nullity

Marital nullity may be pleaded when one or more of impediments to a valid marriage are present. These are the following specific requirements contained in the Civil Code and allow the declaration of absolute nullity (nullity encumbering public order):

  • Marriage between direct line blood relatives.

  • Marriage between brother and sister or half-brother and sister.

  • Marriage between direct-line adopted relatives.

  • Validity of a previous marriage of one or both spouses at the moment of marriage.

  • One spouse being the author, accomplice or instigator of attempted homicide against the other.

There are also some other causes of relative marital nullity (that is, reasons not against public order that can only be applied for by one of the spouses), such as:

  • Marriage performed by a minor (that is, a marriage where one or both of the spouses is a minor, or a marriage that is carried out by a minor).

  • Marriage performed by a temporary or permanent mentally disabled person (that is, a marriage carried out by someone with a temporary or permanent mental disability).

  • When marital consent is obtained through lie, fraud, error or with violence from one spouse to the other.

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

The Argentine legal system establishes two different kinds of marital estate, known as the property earned or purchased by the husband or wife during the marriage. This marital property can then be classified as marital estate administered by the husband during the marriage, and marital estate administered by the wife during the marriage, regardless of who holds title over the specific good. This means that any spouse can hold title of a property and the property is still considered marital estate, although it will be administered by the spouse holding its title.

Marital estate is always allocated to both spouses in equal shares, after the divorce is passed. These allocations and their respective proportions (which may include compensation for the differences in the value of the property) must be agreed, as they can never be imposed or decided by the judge. If the parties do not reach an agreement, the judge, upon petition, can order the public selling of the goods, and the 50:50 distribution of the funds obtained through that form of liquidation.

 
9. What factors are relevant to the exercise of the court's powers?

The judge cannot divide non-liquidated assets between the parties (see Question 8). However, different conflicts may arise concerning whether they:

  • Are marital property.

  • Belong to either spouse as separate or their own private unencumbered property (goods acquired by a spouse before marriage).

Mainstream Argentine legal scholars and judges interpret this to mean that if a married person disposes of a portion of their own private property, and fails to prove that he has purchased another good with that property, it is legally assumed that the monies derived from the sale of the property were consumed by the selling party, with no right to reward against the marital estate. However, if the party can prove that the monies obtained by the sale of the separate property have been assigned to the purchase of a portion of marital property, this amount will constitute a credit in favour of the owner who sold the property. This credit is claimed at the time of legal separation or divorce. The spouse who claims the right to seek reward from the proceeds of the sale of their private property is only required to give proof of the nature and sale of such property, and of the fact that he has received the corresponding funds. However, the spouse who challenges the right to the reward, denying that the monies have really been used for the benefit of the marital estate (by way of reinvestment, gift or concealment) must go beyond mere denial and give positive evidence.

The courts have also declared that it is proper to grant a reward to one of the spouses for the sale of his or her private property after the marriage took place, because it is assumed that the proceeds from the sale were used for the benefit of the marital estate. The courts require that the other spouse challenging such a right provides evidence that the monies received were reinvested or spent on personal obligations or on other things outside the marriage, such as gifts or bequests.

 
10. What is the court's current position on the division of assets?

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

The 2015 amendments to the Civil Code establish spousal maintenance or economic compensation in exceptional and temporary circumstances. Such cases include (among others):

  • Illness.

  • Clear economic disadvantage.

  • Impediment to obtain jobs.

  • Potential loss of pension rights.

Before the reforms were made to the Civil Code, the concept of "innocent" spouse in a fault-based divorced entitled the spouse not giving cause to divorce, to claim alimony further to the divorce decree.

 
12. Is it common for maintenance to be awarded on marital breakdown?

Since spousal maintenance is now limited to exceptional and temporary circumstances under the Civil Code, it therefore not common for maintenance to be awarded on marital breakdown (see Question 11).

 
13. What is the court's current position on maintenance on marital breakdown?

There are different measures that the judge may order during divorce trial and alimony collection court cases. When a divorce case is filed, the claimant usually files for a preliminary injunction to seize 50% of the defendant's income during trial (income and salaries are defined by Argentine law as marital estate), and over marital property in general. These measures could include real estate, vehicles, vessels, bank accounts and equity. Another common order during divorce is the filing of the goods inventory (usually works of art, jewellery and furniture), as, again, they are preliminary and presumably considered marital property, unless the defendant proves ultimately that they are separate property. It is also frequent, in some cases, to order the intervention of an auditor in the defendant's businesses, who has collection powers to withdraw 50% of the defendant's income in those businesses. These usually take place in corporations where the defendant is a shareholder and/or a member of the board of directors.

When executing alimony orders or judicially approved alimony agreements, there are also similar preliminary injunctions which can be ordered by the judge, to secure the goods over which the execution will target. These orders may include also separate goods, as the objective is to collect alimony regardless of the nature of the defendant's property.

In these cases, there is no legal requirement for the complainant to show irreparable injury nor the urgency nor the legal grounds he has for the petition. In addition, the orders are taken without prior hearing or notification of the defendant.

Child maintenance

14. On what basis is child maintenance calculated?

The obligation to support minor children is mandatory for both parents. The parent holding custody is not liable to pay a defined monthly quota, as it is implicit in his custodial status. The other parent is always liable to pay a fixed monthly amount until the child turns 21. Child alimony is always based on a combination of the real needs of the children and the parent's income and ability to pay.

There are two main principles ruling the issue:

  • Alimony can always be modified according to the new or changing needs of the children and the increasing or decreasing income of the parent.

  • It is intended that the children maintain similar living standards to those they had when their parents were living together.

It is generally ruled by the courts, that the non-custodial parent should directly pay for the health insurance and education of the child, plus a monthly amount in cash to cover unspecific daily needs. The parent who has custody receives and deals with the alimony payment, legally representing the children, until they reach 18. From the age of 18 to the age of 21, when the alimony right terminates, the non-custodial parent may pay directly to the child as he is no longer a minor. If during an alimony legal filing, a child turns 18, he is no longer represented by his mother, and is therefore expected to stand in court and to continue proceedings against his father for the alimony part to which he is entitled.

Inflation rates in Argentina, which are usually high, have resulted in a large number of filings in court to adjust the alimony sum. Some methods to establish ongoing adjustments have been both ordered by court and agreed upon by the parties, for example:

  • Establishing alimony as a percentage of the non-custodial parent's salary.

  • Pre-establishing an automatic increase in alimony marked to increases in education or healthcare costs.

However, these mechanisms are not always fair and generate a great deal of conflicts.

A parent failing to comply with alimony obligations may lose parental rights and duties, and may also face a criminal law offence non-payment of family financial assistance.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

A foreign financial order or judgment, or an order passed in another Argentine province, that is final and duly certified in its jurisdiction, can be enforced before the jurisdiction of the defendant's (or paying party's) domicile, or where the defendant's (or paying party's) property is located.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

Argentina will admit a foreign judgment to be executed in its jurisdiction (see Question 15). There are particular bilateral international treaties that establish proceedings for foreign divorce to be enforced in the country. In the case of a foreign judgment passed in a country with which there is no particular treaty, every Procedural Code in any Argentine state will admit the petition of orders from other jurisdictions, by the process of what is known as exequatur, that is, the execution of a foreign judgment as if it was passed in Argentina, provided that:

  • It complies with certain requirements, such as the judgment being final, and is duly notified to the defendant.

  • It does not breach public order.

  • It does not oppose another judgment passed in Argentina.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

The Argentine Civil Code defines parental rights and duties (PR&D) to be exercised by both parents jointly. In case of separation or divorce, the legal use of PR&D is reserved for the custodial parent, without prejudice to the rights of the non-custodial parent to supervise the education of the child, and to have frequent and adequate visitation. Also, the non-custodial parent's authorisation is always required when the child travels abroad or for medical treatments and surgery, for example.

Custody is always assigned to the mother in the cases of children under five, except where this does not best serve the interests of the child. After that age, if the parties do not agree on custody, the judge will decide who will have the custody right, taking under consideration some priorities:

  • To try to maintain the original home organisation of the child.

  • Not to separate brothers and sisters.

  • Always hearing the child, with the intervention of a minority officer, who will represent the child through the judicial process.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

Visitation by the non-custodial parent is to be wide, open, frequent and organised, and must not interfere with the child's habits and usual schedules. As stated previously, it is a criminal offence in Argentina to in any way impede or obstruct normal visitation and parental contact.

The visitation schedule is nearly always agreed upon by the parties. In the case of non-agreement, it is established and ruled upon by the judge, although there are many opportunities given by the court for the parties to agree upon visitation, in order to avoid a visitation judgment. Needless to say, the judicial imposition of a visitation schedule is not an ideal situation for either the parents or children.

International abduction

19. What is the legal position on international abduction?

By law 23.857, which was passed by Congress in 1990, Argentina ratified its participation in the international abduction treaty signed in 1980 in The Hague XVIII Conference. The country has firmly supported the principles set forth in that Conference and the judicial system has always acted accordingly. The principle of a peaceful and rapid return of a child who has been taken out of the country without consent of the other parent has been present in Argentine legislation ever since. Argentina's system requires both parents' consent for a child to leave the country either by himself or in the company of one of his parents. Argentina's immigration office requires written proof granted before a notary public by the non-travelling parent to be exhibited at every border. Even when both parents are travelling with a minor son or daughter, they must prove at the border their parental condition towards the child with the necessary documents.

Despite the fact that, as far as civil law is concerned, it is a priority to return the child and find quick solutions other than just punishing the offender, Argentina's Criminal Code severely punishes both child cross-border abduction and a custodial parent denying the non-custodial parent contact with the child.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

Removing a child from its habitual residence is a very complex issue and all parties involved have mixed and individual rights. When these cases arise, parents usually have serious reasons for petitioning that the residence should be fixed in another jurisdiction.

In Argentina, the legal use of parental rights and duties is jointly exercised by both spouses. However, Argentine legislation provides the right of the child who is separated from one or both parents to maintain personal relationships and keep direct contact with both parents regularly, except where that is contrary to the best interests of the child.

Where one of the parents opposes the child leaving the country to temporarily or permanently reside abroad, the court will decide if that objection is justified. In principle, the right to oppose is granted by the legal use of parental rights. However, this is not an absolute right. The Supreme Court of Argentina has ruled that, for the purpose of preserving the stability of children who have suffered from the impact of a family break-up, there should be very serious reasons (associated with child safety and/or child moral and material health), that may warrant the temporary removal of a child from his or her habitual residence, which would result in changing the status in life that the child enjoyed at the time of filing the separation or the divorce (Supreme Court of the Argentine Nation, 04/29/2008, Parties: M.D.H.c.M.B.M.F.).

For its part, the Court of Appeal has held that a court intervening in taking a child out of his usual jurisdiction, as an alternative to such conflicts, is never about forcing the parties to choose one option or another, but is about understanding whether the father's objection to the minor child residing abroad is warranted or not, and at making the most advisable decision for the parties involved (National Court of Civil Appeals, Chamber K, 05/29/2006, Parties: P.,M.E.c.S.,J. C).

For the purpose of evaluating whether the father's objection is warranted, and in order to determine the best interests of the child, the courts will generally evaluate the factors as a whole, such as:

  • The habitual residence of the child.

  • The type of relationship between the non-resident parent and the child, that is whether they see each other regularly or sporadically and whether the resident parent is actively involved in the upbringing of the child or is an absent parent.

The courts must also consider if the child has his needs provided for within the country, and, of course, his opinion will be heard, according to his age and maturity, as well as "the centre of living" of the child (a notion defined by law as "the place where the child has lived the greatest part of his existence"). This relates to how the child's identity is closely linked to the child's residence.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

Argentina's legal system does not recognise surrogacy agreements, as a biological mother will always be able to claim, lawfully, the parenthood of a child to be born or already born. This biological link will always prevail against an agreement made unlawfully, as the object of that contract will always be illegal.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Adoption is Argentina is judicially granted. Adoption, either simple (revocable) or permanent (extinguishes biological parental link), can only be granted and decided by a family law judge, after verifying, among other requirements:

  • The parent's age requirements (over 30 years of age, or married couples over three years of marriage).

  • The parents' residence in the country for more than five years.

  • The biological parents' consent.

  • The adopted person's consent (if he or she were over 18).

Law 26.618 (passed in 2010) and Law 26.994 (passed in 2014) allow individuals and cohabiting couples (both heterosexual and same-sex) to file for the adoption of a child.

 

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

Following the 2014 amendment to the Civil Code, unmarried couples who have cohabited for two years can choose to use private agreements to rule their arrangements for distributing property (Cohabitation Agreement). The cohabiting couple may register (it is not compulsory) their link in a civil registry for unmarried couples of different or same sex.

Unmarried cohabiting couples retain some pension rights, but there no specific rules for the division of property other than what they have agreed upon in the Cohabitation Agreement.

There is also protection of family home in case of selling (mutual consent required), and compensation rights for non-working party in charge of child education.

Apart from the above, unmarried couples are subject to the rules of joint ownership set out in the Civil Code.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

As a Federal Republic, every state or province in Argentina has its own procedural laws. The Federal Capital (City of Buenos Aires) has a compulsory mediation statutory law that has been valid for more than 15 years. Every patrimonial family law matter (that is alimony and the division of marital assets), must be filed before a registered mediator, prior to filing in court. This process is confidential and each party must have legal advice during the necessary hearings. Mediation ends with an agreement act, with the mediator's intervention, who submits the agreement in court for approval.

If no agreement is reached, the mediator issues a non-agreement act that allows the requiring party to file in court. Mediation has proved to be effective and satisfactory in most cases. A key factor of success in mediation is the absence of a sentence passed by a judge, deciding in favour of one party and against the other party. In family law, these issues are extremely important as they prevent later conflicts caused by the dissatisfaction of the losing party. The mediator is a relevant figure who collaborates with the parties in order to help them reach an agreement. There might also be participation from other professionals, such as psychologists and counsellors, helping the parties to reach a solution in the particular case.

After the City of Buenos Aires' experience with mediation, most provinces have passed similar laws imposing these proceedings in their jurisdictions. The province of Buenos Aires, Argentina's most important state, began this procedure in 2012. Mediation has been such an effective solution that some judges, at a relevant point during litigation, have acted as mediators, using mediation skills in one or more subsequent hearings, in order to persuade the parties to reach an agreement.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

This depends on the jurisdiction in which the parties live. In the Federal District, divorce proceedings do not require compulsory mediation, except if they are part of the alimony proceedings and asset division after divorce. In most provinces there is a preliminary compulsory mediation stage, inside the family court. There is no arbitration process in family law.

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

Same-sex marriage was introduced by Law 26618 enacted in July 2010. The law provides that married same-sex couples have the same rights and duties as those provided for by heterosexual marriages. It modifies the terms of the matrimonial act by changing the word husband and wife, and father and mother, for the terms "spouses" and "parents" respectively, which include both genders.

Act 26.618 also changed the institution of adoption, which is now allowed for same-sex couples under the same terms as those required for heterosexual couples. Same-sex marriage and cohabitation have been definitely recognised and enforced in the recent 2014 amendments to the Civil Code.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Argentine private law has definitely changed with the enacting of Law 26.994, which has completely amended the Civil Code and Commercial Code. These major reforms are due to come into force in August 2015.

The reforms have had a significant impact on family law, in particular in relation to nearly every aspect of matrimony and divorce, including:

  • Permitting both pre-nuptial agreements and post-nuptial agreements.

  • Allowing divorce proceedings to be much simpler and not dependant on both spouses' wills, therefore allowing one of the spouses to request a non-fault divorce.

  • Issues regarding the importance of artificial conception and birth, egg donation regulation or surrogacy.

Argentina's domestic violence legislation has been another achievement during the past ten years, which has included:

  • Establishing new and modern ways of preventing violence and creating multi-disciplinary teams to work on the problem and to find solutions.

  • Establishing drastic preliminary injunction orders, such as home exclusion for the abuser, and psychological treatment for every member of the family.

Finally, there is a pending issue in Argentina regarding parental alienation. Legislators and judges should be more concerned about the damage caused in a child's mind when one parent continuously delivers negative and aggressive messages to a child regarding the other parent. This tends to be silent in family law, is very difficult to prove, is very difficult to avoid, and has very little to do with how a parent really is, and very much to do with how one parent sees the other parent during or after divorce. This is a complex and painful matter that requires the whole of the legal profession to start working devotedly and much harder on the subject.

 

Contributor profile

Diego Horton, Senior Partner

Perez Maraviglia & Horton. Abogados

T +54 11 4797 7015
E dhorton@pmhabogados.com
W www.pmhabogados.com

Professional qualifications. Lawyer, admitted in 1989, University of Buenos Aires, admitted in Buenos Aires City Bar, Province of Buenos Aires Bar and Province of Chubut Bar

Areas of practice. Family law; civil law; corporate; foreign investments; private international law, litigation.

Professional associations/memberships

  • Lecturer and writer on family law, medical malpractice, international law and other civil law subjects.
  • Member of the World Link for Law.
  • Member of the Society of British and Argentine Lawyers (SOBAL).
  • Member of the International Bar Association.

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