Family Law in Argentina
Family Law in Argentina is primarily governed by the Civil and Commercial Code of Argentina (Código Civil y Comercial de la Nación), which came into effect on August 1, 2015. This law consolidated family law and commercial law, updating the legal framework to provide greater protections and rights for individuals in family relationships. The reforms aimed to modernize family law, particularly in areas of gender equality, same-sex marriage, child custody, and child protection.
Here’s an overview of the key aspects of Family Law in Argentina:
1. Marriage
Legal Age for Marriage: The minimum legal age for marriage is 18 years for both men and women. However, individuals aged 16 and 17 can marry with parental consent or court approval.
Same-Sex Marriage: Argentina was the first country in Latin America to legalize same-sex marriage, which was officially approved on July 15, 2010. Same-sex couples have the same legal rights and responsibilities as heterosexual couples, including access to adoption, inheritance, and social security benefits.
Marriage Contract: Upon marriage, couples can choose between two legal regimes for the management of property:
Separation of property: Each spouse retains ownership and control over their individual assets.
Community property: Assets acquired during the marriage are jointly owned, with both spouses having equal rights over them.
2. Divorce
No-Fault Divorce: Argentina introduced no-fault divorce under the Civil and Commercial Code. Divorce can now be requested by one or both spouses, without needing to prove fault such as infidelity or abuse. The divorce can be granted based on irreparable breakdown of the marriage.
Divorce Process: A divorce can be:
Unilateral: Initiated by one spouse without the consent of the other.
Mutual: When both spouses agree to the divorce and its terms.
Separation Before Divorce: There is no mandatory period of separation before filing for divorce. One spouse can file for divorce immediately after the marriage breaks down.
Alimony: One spouse may be required to pay alimony (spousal support) to the other, based on the latter’s financial needs and the other spouse’s ability to pay. Alimony payments can be temporary or permanent, depending on the circumstances.
3. Child Custody and Parental Responsibilities
Equal Parental Responsibility: The new Civil and Commercial Code emphasizes the importance of shared parental responsibility after divorce. Both parents must equally share the rights and duties of raising their children, even if they no longer live together.
Custody: Traditionally, mothers had primary custody of children after divorce, but the law now encourages joint custody whenever possible. Joint custody means both parents are actively involved in the child's upbringing and share time with the child. Single-parent custody is still possible if one parent is deemed to be in the child’s best interest.
Child’s Best Interests: The best interests of the child is the guiding principle in determining custody and visitation arrangements. Courts take into account the child’s relationship with both parents, the child’s well-being, and the parents' ability to care for the child.
Visitation Rights: Non-custodial parents are entitled to regular visitation and must maintain a relationship with their children. If one parent is denying access to the other, they can seek legal remedy through the courts.
4. Adoption
Adoption Rights: In Argentina, adoption is legally available to both single individuals and couples, regardless of marital status or sexual orientation. Same-sex couples have the same adoption rights as heterosexual couples.
Types of Adoption:
Full Adoption: The child is legally integrated into the family, and the adoptive parents take on full legal responsibility for the child. The adopted child is given the same rights as biological children, including inheritance rights.
Simple Adoption: The child retains legal ties to their biological parents but is cared for and raised by the adoptive parents.
Adoption Process: The adoption process can be lengthy and includes background checks, home visits, and a period of foster care before a final decision is made. Adopted children can be of any age, including infants or older children.
5. Inheritance
Intestate Succession: If a person dies without a will, Argentine inheritance law dictates that the estate is divided among the spouse, children, and in some cases, parents and siblings. The spouse is entitled to one-third of the inheritance, and the remainder is split equally among the children.
Wills: Individuals can write a will to designate how their property will be distributed upon their death. However, Argentine law limits the freedom to dispose of assets, as a portion of the estate is reserved for the legitimate heirs (children or spouse) by law.
Forced Heirship: Argentine law mandates that certain portions of an estate go to certain family members, particularly children and spouses. This means that an individual cannot fully disinherit their children or spouse in favor of other beneficiaries.
6. Domestic Violence and Protection Orders
Domestic Violence: Argentina has strong legal protections against domestic violence. The National Law on Domestic Violence (Law No. 24,417) provides measures for the protection of victims, including restraining orders, removal of the abuser from the home, and legal assistance.
Protection Orders: Victims of domestic violence can request protection orders to keep the abuser away from the victim and their home. These orders can also extend to include children and other family members.
Criminal Penalties: Domestic violence is a criminal offense in Argentina, and perpetrators can face criminal charges, including imprisonment.
7. Paternity and Parental Recognition
Recognition of Paternity: The father’s identity must be legally recognized by the mother or a court. If paternity is disputed, DNA testing can be used to establish parentage.
Child’s Surname: A child can bear the surname of both parents, with the order of surnames determined by the parents or the court if the parents cannot agree. Traditionally, the child takes the father’s surname first, but the new law allows flexibility in this regard.
8. Child Protection and Welfare
Protection of Children’s Rights: Argentina is a signatory to the United Nations Convention on the Rights of the Child and has established strong laws to protect children from abuse, neglect, and exploitation. Children have the right to education, health care, and protection from violence.
Minors’ Legal Capacity: Children in Argentina gain legal capacity at the age of 18, but there are protections for minors, including the ability to take legal action in certain circumstances, such as in cases of abuse or neglect.
9. Surrogacy and Reproductive Rights
Surrogacy: Argentina does not currently have specific laws regarding surrogacy. Commercial surrogacy is not legally permitted in Argentina, and altruistic surrogacy is not explicitly legalized, though arrangements may be made on a case-by-case basis under private law.
Reproductive Rights: Argentina provides access to fertility treatments, including in vitro fertilization (IVF). In 2020, the Argentine Congress passed a law guaranteeing access to free fertility treatments under the national health system for all residents.
10. Separation of Assets in Marriage
Regime of Property: In Argentina, spouses can choose between two primary regimes regarding property:
Community Property: Assets acquired during the marriage are jointly owned by both spouses, and they share equally in the value of any property or assets gained during the marriage.
Separation of Property: Each spouse retains ownership of their individual assets, even if acquired during the marriage.
Conclusion:
Family Law in Argentina aims to ensure fairness, equality, and protection of individual rights within the family structure. With the introduction of the Civil and Commercial Code in 2015, Argentina made significant strides in modernizing family law to ensure greater protection for all family members, particularly children and women. Key changes include the legalization of same-sex marriage, the emphasis on shared parental responsibility for divorced parents, and greater protection against domestic violence. The law provides flexibility in addressing contemporary family dynamics and offers legal avenues for resolving disputes, protecting children, and ensuring the well-being of family members.
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