MARRIAGE

a) Celebration of Marriage

Foreigners intending to marry in the Dominican Republic must present the following documents:

  1. Original passport and a copy.
  2. Letter certifying their single status issued by the appropriate authority in the country of origin and legalized by the Dominican Consulate.
  3. Tourist card, residence card or personal identity card, as applicable.

The marriage ceremony is performed by the Civil Status Officer of the place of residence of any of the spouses in the presence of at least two witnesses. The Marriage Act contains the name of the spouses, a declaration that they have been united in matrimony, the date of celebration, and the signatures of the Officer, the spouses and the witnesses.

A religious marriage has the same legal effects than a civil marriage. The minister celebrating the marriage must only remit a copy of the marriage act to the Civil Status Officer within the next three days for the purpose of registration.

b) Property Relations of Married Couples

The Civil Code regulates property relations between married couples. The community of property system is the so called "legal regime" which applies automatically to all couples who get married in the Dominican Republic and do not expressly choose another system.

Within the community regime there are three kinds of property:

1. The common property, which belongs jointly to both spouses,
2. The husband's own property, and
3. The wife's own property.

The community is formed by all the personal property of the spouses, whether acquired before or during the marriage, as well as real property acquired during the marriage. Spouses' own property basically includes real estate acquired before the marriage, inherited property and reinvestments of own property.

Until the year 2001, the husband was entitled to manage, and dispose of, all the property, and the wife could not even dispose of her own property without his consent. This situation changed with the passing of Law 189-01 of 22 November 2001, which amended several articles of the Civil Code, granting both spouses the joint administration of common
property.

The dissolution of the community, by divorce or death of one of the spouses, will entail:

• The determination of divisible assets,
• The recovery by each spouse (or their heirs) of their own property, and
• The distribution of the remaining common property between the spouses (or their heirs).

This liquidation and distribution of the community may be made before Public Notary or, if the parties do not agree, in court.

Couples wishing to adopt a property regime different than the community system can choose any of the additional regimes provided by law, such as property separation, dowry regime, community reduced to earnings, universal community, etc., but they can also choose a foreign law or create their own special system.

In order to do so the spouses must, prior to the celebration of marriage, sign an agreement to that effect before a Public Notary. The Officer performing the marriage must register this agreement in the Marriage Certificate. After getting married the spouses cannot change their regime, and even if they divorce and then decide to marry each other again they have to keep the same property system they had during their first marriage.

DIVORCE

Divorce may be:

• By mutual consent,
• For specific reason, or
• Special.

a) Divorce by Mutual Consent

This type of divorce may only take place after two years of marriage and before 30. Furthermore, the husband should not be older than 60 years nor the wife older than 50 years.

Couples who decide to divorce need to sign an agreement before a Public Notary where they declare their intention to get divorced and provide, among other things, for the distribution of property, the custody of children and the alimony payments.

The Judge of First Instance who, after verifying that all formalities have been complied with, issues a judgment admitting the divorce, which cannot be appealed, by any of the parties must ratify this agreement. Afterwards the divorce must be registered, pronounced, and published within certain deadlines.

b) Divorce for Specific Reason

The divorce for specific reason may be requested in the event of incompatibility, absence, adultery, criminal conviction, bodily harm, abandonment, and alcoholism or drug addiction.
The competent court is the Court of First Instance of the domicile of the defendant spouse.

This court, after examining the evidence and hearing the witnesses from each party, orders the divorce on behalf of one of the spouses and decides, among other things, on the custody of children, if any, and on the alimony payments. In general, children younger than four years should remain with the mother, and older children should remain with the parent obtaining the
divorce, but the court can always take into account any special circumstances.

Once the term to appeal, which is two months, has expired, certain registration, pronouncement and publication formalities must be fulfilled.

c) Special Divorce

Special divorce applies only to foreign or Dominican couples residing abroad that decide to divorce by mutual consent. The spouses need to sign an agreement before a Public Notary or similar officer in their country of residence where, apart from declaring their intention to get divorced and providing for the distribution of property, the custody of children, and alimony payments, they give exclusive jurisdiction over the divorce to the Judge of First Instance. A Dominican Consulate must legalize this agreement.

At least one of the spouses must be present at the hearing, while the other may be represented by a duly notarized and legalized power of attorney. The judge will also require copies of the marriage certificate and the birth certificates of children, if any. If all formalities have been met the judge ratifies the agreement and admits the divorce.

The process at the court, plus the registration, pronouncement and publication of the divorce, takes from one to four weeks. Furthermore, in order to be valid abroad the following authorities must certify the divorce judgment:

a. The Attorney General Office,
b. The Ministry of Foreign Relations, and
c. The embassy or consulate of the country where the divorce is to be valid.

ADOPTION

Foreign persons that have been married for five consecutive years may adopt minors in the Dominican Republic. This term is three years for Dominican nationals. The Minors Protection Code, contained in Law 136-03, regulates adoption.

Under this statute, the National Council for Child Protection (CONANI) has the role of coordinating adoption procedures.

All adoption requests have to comply with the provisions of the International Convention on Minors Protection and other international agreements, and are handled in the child's interests.

a) Types of Adoption

Since the enactment of Law 136-03, Dominican legislation provides only the procedure of privileged adoption, which is irrevocable and creates for the adopted child a family relation that substitutes his family of origin.

It grants the adopted child the same legal rights than a legitimate child. The minor stops belonging to his natural family and becomes a member of the adopting person's family, with all legal consequences resulting therein, such as change of name, rights of inheritance within the adoptive family and vice versa, etc. Privileged adoption can only be granted in relation to minors who are orphans, abandoned or of unknown parents. It may be national or  international, depending on whether the adoptive parents are Dominican residents or foreign persons.

b) Requirements for Adoption

Persons wishing to adopt a minor in the Dominican Republic must fulfill the following requirements:

  • To be at least 30 years old;
  • To be married for more that five years, if they are foreigners, and more than three years, if they are Dominicans;
  • To be at least 15 years older than the adopted minor;
  • To live together in the country with the minor for at least 30 days if the child is more than 15 years old, or 60 days if the child is less than 15;
  • To show a declaration of loss of parental authority in the case of abandoned children; and
  • If the adoptive parents have children older than 12 years, to present them at the court.

c) Adoption Procedure

The adoption request is made to CONANI, and must contain all the relevant information and documentation about the adoptive parents, such as proof of solvency, employment letter with indication of salary and time working for the company, or sworn statement with bank letter, health certificate, police record of the couple not older than three months, photographs, psychological and social studies about the couple made by the competent authorities of their
country of origin, official certification of country of origin of the couple stating that the naturalization procedure of the minor will be completed, report on the feasibility of the child's integration into the adoptive family, report on their social and moral standards, marriage certificate legalized by Dominican Consulate and the Ministry of Foreign Affairs, birth
certificate, etc.

After the request has been filed and the adoptive parents and child have lived together for the required period, they will be interviewed by CONANI, which will thereafter issue a Physical, Mental, Social and Moral Certification, if satisfied, which has a six-month-validity.

It should be noted that all documents filed with the adoption request must be originals. They have to be legalized by the Dominican Consulate of the country of origin of the applicants and by the Ministry of Foreign Affairs in our country.

If they are not written in Spanish, an official translation in the country certified by the General Attorney's Office is required.

The adoptive parents must then file the adoption request with the Court of Minors of the place of residence of the person or entity having the custody over the minor. The Public Defensor of Minors shall render an opinion on the request within the next five days. If approved, the Judge, after reviewing the file and verifying the supporting documents, will issue the judgment within the next ten days.

The adoption judgment must then be submitted to the following formalities:

  1. Publication in a newspaper of nationwide circulation.
  2. Notification to at least one of the adoptive parents and the biological parents.
  3. Inscription at the Central Civil Registry.
  4. Transcription of the judgment at the respective Civil Office after authorization of the Central Civil Registry.
  5. Legalization at the General Attorney's Office, the Ministry of Foreign Affairs and the Consulate of the country of origin of the adoptive parents in order to allow the minor to leave the country, replacing the original birth certificate.

Finally, a copy of the whole file must be deposited with the General Immigration Office, and an interview must be held at this entity, which will then grant the permit allowing the child to leave the country.

Adoption files are kept in record for a period of 30 years. The only persons who may have access to these files are the adopting person, and the adoptive child upon reaching legal age.

INHERITANCE

a) Categories of Heirs

Different ranks of heirs are established in order to regulate the transfer of a deceased person's property. The inheritance shall be distributed equally among the living relatives belonging to the highest rank. There are six ranks of heirs:

• First: descendants (without distinctions based on sex or seniority)
• Second: parents and siblings
• Third: ascendants
• Fourth: collaterals
• Fifth: spouse
• Sixth: the State
• Quinto: cónyuge
• Sexto: el Estado

b) Legal Reserve

Dominican laws establish a legal reserve on behalf of children and parents, under which a part of the deceased's property must be kept for them and cannot be thus donated by will or testament. The heirs entitled to such reserve may thus invalidate any donations that reduce their inheritance below the legal limit.

The legal reserve is 50% of the deceased's property if he/she leaves one child or one or both parents, 66% if he/she leaves two children, and 75% if he/she leaves three children or more.

c) Taxes

Law 288-04 on Tax Reform introduced a significant amendment of inheritance taxes. Article 16 provides a 3% tax rate on the inheritance net value, which is a substantial change given that the previous law provided increasing rates ranging from 1% to 32%.

For donations the rate is 25% of the value of the donated property.

Article 17 of the Tax Reform abrogated Article 5 of Law 2569 on Inheritance and Donations, which established a classification in several categories of beneficiaries of property transfers by inheritance.

Statements pertaining to the payment of taxes must be made to the Internal Tax Collector of the place where the inheritance was opened (i.e. place of decease) within 30 days after the date of opening (i.e. date of decease). Inheritances of foreign persons are subject to this tax in relation to the property located in the Dominican Republic.

Furthermore, for persons residing abroad who inherit property in the country the applicable tax rate will be increased by 50%.

The liquidation and payment of taxes is necessary in order to obtain the transfer of titles, accounts and other rights of the deceased on behalf of the heirs. In addition, certain procedures must be followed that will depend on the type of asset.

Written by: Pellerano & Herrera, Attorneys at Law, ph@phlaw.com
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