Saturday, September 28, 2013

Mexican Supreme Court establishes U.S. style property division rules in divorce cases

Diaper changing and floor mopping are just as valuable as a desk job

Guadalajara -
Mexico's Supreme Judicial Court ruled this week that in divorce litigation, a woman who never worked outside the home is nonetheless entitled to as much as 50% of the marital estate.

The judicial ministers recognized that household duties and the care of minor children have the same economic value as any other form of employment. The decision upheld a Federal District statute, passed Oct. 3, 2008, against a legal challenge filed by a man who contended that the law applied only to marital property acquired after that date. The court rejected the man's claim that by applying the statute to property acquired before its enactment, the constitutional rule against retroactive legislation would be violated.

The man won his case at trial, where a divorce court judge ruled that article 267 of the Mexico City Civil Code had no applicability to money and property acquired by the couple before the law went into effect. Since the divorce was filed soon after the statute's enactment, there was little for the wife to assert a claim against. But an intermediate appellate court reversed the ruling and awarded her 35% of the entire marital estate, which is defined as all cash, real estate and personal property acquired by a couple from on and after the date the marriage is entered into.

The Supreme Judicial Court's decision upheld the appellate court ruling and rejected the husband's retroactivity argument. "To find, as the complainant (husband) would have us do, that the law applies to marriages contracted before its date of enactment but without taking into consideration property acquired before the effective date of the legislation, would effectively nullify the statute in this case, because there would be almost nothing to divide."

The ministers found that the legislative intent of the statute - always a critical question in determining the application of a law - was to protect women who spend all of their productive years in domestic labors. A 2011 study by a Mexican government institute reported that in over 79% of married couple households, women are in charge of child care and home duties and do not have outside jobs. That number is considerably higher than now prevails in the United States.

This week's decision by the Mexican Supreme Court brings the nation into line with property division rules long extant in American courts. A minority of U.S. states follow so-called community property rules, where there is an automatic presumption that the marital estate was acquired by joint industry, and must be equally divided on divorce. In contrast, in equitable division states, which account for the majority of U.S. jurisdictions, a divorce court is required only to "equitably divide" assets. Equitable means fair, but not necessarily equal. But even equitable division courts generally strive for a 50/50 property split, except when to do so would penalize one spouse for misconduct by the other which significantly dissipated marital assets (for example, by gambling losses or money devoted to illegal pursuits, such as drug purchases). In both community property and equitable division states, money acquired by a spouse from family gifts or inheritance may be subtracted from the equation.

Nov. 20 - Palimony, more or less, arrives in Mexico
Feb. 27 - Mexican high court awards punitive damages in Acapulco hotel electrocution case

Apr. 30 - Yucatán federal court orders recognition of gay marriage
Apr. 29 - Mexican Supreme Court ruling expands abortion rights
Mar. 27 - Same sex marriage arrives at the U.S. Supreme Court - and at the Mexican Supreme Court
Mar. 6 - Mexican Supreme Court: anti-gay comments are hate speech, not free speech, and are not legally protected

© MGRR 2013. All rights reserved. This article may be cited or briefly quoted with proper attribution or a hyperlink, but not reproduced without permission.

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