Family Law in Argentina: Marriage, Adoption & Custody
Family Law in Argentina
Unit 1: Family and Relationships
Family Concept: A human group composed of father, mother, and children living together. This also includes close relatives (broadly defined).
Relationship Concept: A legal connection from blood ties, marriage, or adoption.
Grades: The link between successive generations. First-degree relatives (father and son), second-degree (grandchild or sibling), etc. form branches of a family tree. The Civil Code mentions three lines: ascending, descending, and collateral.
Species
- Sibling: Can be in a straight line (no difficulties) or collateral line (unilateral or bilateral link).
- Afin: Related by marriage. The link is limited to one spouse with the blood relatives of the other.
- Adoptive: Full adoption gives the adopted child the same status as a biological child. Simple adoption considers the adoptee a child of the adopter only.
Effects: Kinship has civil, criminal, and procedural effects.
- Civil: Matrimonial impediments, alimony, etc.
- Criminal: Affects responsibility for certain crimes.
- Procedural: Produces disabilities (e.g., witnessing).
Family Status: The legal position a person occupies in society, determining their rights and obligations. This includes gender, age, marital status, nationality, etc.
Unit 2: Marriage
Marriage is the union of a man and a woman to establish a lifelong community.
Characteristics:
- Union of man and woman: Creates reciprocal rights and duties.
- Permanent: A prerequisite; rules out temporary marriages.
- Irrevocable: Neither spouse can unilaterally revoke the union.
- Monogamous: Bigamy, polygamy, and polyandry are not permitted.
- Legal: Requires legal formalities.
Concubinage: Not legally defined, but certain rights for cohabitants are increasingly recognized.
Betrothal: Not legally recognized in Argentina; generally has no legal effect.
Unit 3: Marriage Celebration
Requirements:
- Valid consent (free from error, fraud, or violence).
- Performed before a competent public official.
- Compliance with legal forms and solemnities.
- Compliance with characteristics (gender diversity, permanence, irrevocability).
- Absence of legal impediments.
Impediments:
- Dissolving impediments: Kinship, prior marriage (ligamen), crime, minimum age, mental health, certain diseases, and mutism.
- Disabling impediments: Guardianship, age of children marrying without permission, soldiers and diplomats needing permission.
Statement by Public Officer: Marriages must be performed before a civil registrar, except in extremis situations.
Absentee Marriage: Allowed under certain conditions, following the New York Convention of 1962.
Unit 4: Invalidity of Marriage
Nonexistent Marriages: Lack essential elements (consent, official, etc.) and have no effect.
Absolute Nullity: Serious impediments (kinship, prior marriage, crime) render the marriage unconfirmable.
Relative Nullity: Lack of legal age, mental incapacity, error, fraud, violence, impotence, or venereal disease.
Consequences of Invalidity: Differ based on the good faith of the spouses. Putative marriages are given full effect until the declaration of nullity.
Unit 5: Personal Effects of Marriage
Duties: Loyalty, cohabitation, care.
Name of Married Women: Optional to add husband’s surname.
Relationship: Marriage creates kinship.
Interception of Correspondence: Not permitted.
Unit 6: Economic Effects of Marriage
Property Regime: Community property.
Marriage Conventions: Limited to donations made before marriage.
Conjugal Property: Co-ownership of assets acquired during marriage.
Property of Their Own: Assets brought to the marriage, inherited, gifted, or acquired with proceeds of such assets.
Marital Property: Assets acquired during marriage.
Real Estate: Requires demonstration of the origin of funds used for purchase.
Movable Property: Similar requirements as real estate.
Family Home: Protected from creditors’ claims.
Debts of Spouses: Each spouse is responsible for their own debts, except for household expenses.
Joint Ownership: Requires consent of both spouses to dispose of jointly owned property.
Mixed Goods: Characterized by the greatest contribution.
Contracts Between Spouses: Certain contracts are prohibited.
Unit 7: Personal Separation of Spouses
Grounds: Adultery, attempt on life, incitement to crime, voluntary departure, serious mental disorders, alcoholism, drug addiction, or unwilling separation for two years.
Procedural Matters: Court jurisdiction, precautionary measures.
Personal Effects: Cessation of cohabitation, dissolution of marital property, alimony, child custody.
Child Custody: Children under five usually go to the mother.
Reconciliation: Can cease separation proceedings.
Effects of Separation: Cessation of hereditary vocation, separate registration, maintenance obligation.
Unit 8: Dissolution of Marriage
Divorce: Grounds include those for personal separation and separation for three years.
Presumed Death: Allows remarriage, but the first marriage remains valid if the first spouse returns.
Death: Dissolves the marriage.
Unit 9: Applicable Law
Foreign Marriages: Validity governed by the law of the place of celebration. Effects governed by the law of the marital home.
Separation and Dissolution: Governed by the law of the last marital home.
Unit 10: Affiliation
Children: Of marriage, born out of wedlock, and adopted.
Child of Marriage: Determination of maternity and paternity.
Paternity: Presumed for children born during marriage.
Claim of State Action: Action to establish paternity or maternity.
Actions to State: Denial of paternity, challenge to paternity or maternity.
Unit 11: Adoption
Adoption is a legal process creating a parent-child relationship.
Subject of Adoption: Unemancipated minors, exceptionally adults.
Adopter: Must meet age and residency requirements.
Pre-adoption Custody: Required period of custody before adoption.
Types of Adoption: Full and simple.
Full Adoption: Gives the adopted child the same rights as a biological child.
Simple Adoption: Creates a parent-child relationship but not full kinship.
Revocation: Simple adoption is revocable.
Invalidity: Absolute and relative grounds for invalidity.
Unit 12: Custody
Meaning: Rights and duties of parents regarding their children’s person and property.
Who Exercises Custody: Both parents, unless separated or one parent is deceased or unfit.
Rights and Duties of Parents: Care, education, attendance, representation.
End of Parental Rights: Death, emancipation, adoption.
Deprivation of Parental Authority: Judicial order due to parental misconduct.
Unit 13: Guardianship and Curatorship
Guardianship: Legal protection for minors not subject to parental authority.
Classes of Guardianship: Testamentary, self, dative, special.
Curatorship: Legal representation for incapacitated adults.