El convenio de divorcio ante notario: la experiencia jurídica mexicana = The agreement in which the marriage bond notaries: the experiencie Mexican

Abstract

In October 2008, the legislative assembly in the Federal District, proceeded to approve a series of changes in the Civil Code and Civil Proceedings Code through which several dispositions were derogated, changed and added in order to present a new divorce legal figure which in the beginning was known as express divorce and later on as uncaused divorce or without cause among o the terms. This legal figure was replicated by the state of Mexico, through a decree on May 3, 2012, and also as a result of it becoming in effect in the Federal District and the rest of the previously mentioned federal states, necessary divorce was derogated and voluntary or mutually agreed divorce is still in effect only in the Mexico because uncaused divorce is nonexistent in those entities. In twenty-five states of the republic, necessary, voluntary and administrative divorce are still in effect and as far as the last one, it is applicable in the entire Mexican Republic. Also, it is important to mention that even though this new type of divorce has been objected through writs of ampere that claimed it to be unconstitutional due to violation of legality guarantees, due process, and family protection, among theirs. The federal judicial authority ruled it to be constitutional since it doesn’t violate any guarantee or right. But which is the main foundation of the so called «express-divorce», the exposition of motives in there form clearly states «…the person’s freedom of will must be privileged…» since it equates to a type of slavery, this legal figure with its foundation in a legal institution such as marriage, restricts freedom by establishing a perpetual contract that can only be dissolved with cause, therefore the tendency in Mexico will be that uncaused divorce will soon apply nationwide so it is important for it to have its foundation in this philosophy of freedom of will and to propose reforms targeted to give Notaries, as public faith depositaries and formal contract specialist, faculty to enter into an agreement in which the marriage bond is being terminated per request of both parties avoiding the judicial process as is the case of other non-contentious processes that the notary witnesses.