FAMILY LAW AND FAMILY PROCEDURE: Divorce in Bolivia: Notarial or Judicial?

Since ancient times, marriage has been considered one of the fundamental institutions of social organization, representing the formal union between two individuals with the purpose of establishing a shared life and building a family estate that endures over time. From a legal perspective, marriage is a solemn legal act intended to create a legally recognized marital bond, generating reciprocal rights and obligations for both parties. This marital bond, under Law No. 603 (Family Code and Family Process Law), is characterized by two essential elements:

The creation of a shared life project based on peace, mutual respect, and the absence of violence.

The social and family recognition of the couple as spouses.

However, the legislation acknowledges that marriage is not an unbreakable relationship, as there are two situations that may lead to its dissolution: i) the death or declaration of presumed death of one of the spouses, and ii) divorce or marital separation.

In this article, we will focus on the figure of divorce, defined as the legal dissolution of the marital bond when one or both parties decide to terminate their shared life project. In this regard, Bolivian law does not require the demonstration of a specific cause to request divorce, allowing it to be processed either through the judicial or notarial route, depending on the circumstances.

Regarding notarial divorce, this procedure is applicable exclusively when both parties agree to divorce, there are no minor children under the age of 25, there are no community assets subject to registration, and both spouses expressly waive family support. In such cases, the spouses must approach a Notary Public and submit a joint petition that meets the following requirements:

1. The names, surnames, identity card numbers, and real addresses of both spouses, including details of the attorney, if applicable. Photocopies of the identity cards of the spouses or the legal representative must be attached.

2. The mutual agreement to divorce, accompanied by the Divorce Settlement Agreement.

3. A sworn declaration and proof of the absence of common children. A Certificate of Parentage issued by the Civil Registry Service (SERECI) must be attached.

4. A declaration of the absence of community assets subject to registration, accompanied by a Negative Certificate issued by Real Rights at the national level.

5. An express waiver of family support by both spouses.

6. A declaration of the absence of judicial proceedings related to the divorce, or evidence of their withdrawal.

7. The date of the document.

Once these requirements are verified, the Notary Public will proceed to register the initiation of the procedure in a Notarial Record. After a period of no less than three (3) months and no more than six (6) months from the initiation of the process, the spouses must appear again before the Notary to ratify their decision to divorce. This ratification will be recorded in a Notarial Act, after which the Notary will issue the divorce certificate, which must be registered with the Civil Registry Service (SERECI) for the final cancellation of the marriage record.

This notarial divorce procedure presents a simplified and less contentious route, reserved for cases where there is no dispute between the parties and the legal requirements are met.

On the other hand, judicial divorce, regulated by Law No. 603 (Family Code and Family Process Law), is an extraordinary process that may be initiated by one or both spouses, either personally or through a representative. The dissolution of the marital bond through this route is theoretically characterized by being a brief and straightforward procedure, although in practice it may be affected by delays within the Bolivian judicial system, potentially leading to justice being delayed.

Before initiating this judicial process, it is essential to have a well-defined procedural strategy, particularly regarding the division and partition of community property (if applicable), as success in the defense will largely depend on proper planning to achieve a fair and equitable division of assets acquired during the marriage. This issue becomes particularly relevant when there are indications of a possible malicious concealment of assets by one of the spouses, which could severely affect the final distribution of the estate.

It is important to emphasize that each judicial divorce case must be analyzed rigorously, with special attention given to the assets involved. It is necessary to determine which assets are part of the community property and which are excluded from it. This detailed evaluation is essential to avoid emotional and financial strain in a futile legal dispute over personal property that is excluded from community property, such as assets acquired through inheritance, donation, or those acquired before the formalization of the marriage, among others.

In light of the above, it is clear that notarial divorce is a simple and expeditious procedure, reserved exclusively for situations where there is no dispute between the spouses and the legal requirements established in the current regulations are met. It represents a suitable option for dissolving the marital bond quickly and without major complications, as long as both spouses agree and there are no grounds for rejection. In contrast, judicial divorce is the ideal procedure for cases where the notarial route is not available, either because the legal conditions are not met or because there are disputes that need to be resolved, such as the division and partition of community property, making it the most suitable option for resolving disputes between spouses.

Consequently, the choice between the notarial and judicial routes will depend on the specific circumstances of the case, with the former being a quicker and more peaceful option, while the latter provides the necessary tools to address more complex situations or disagreements.

Victor Manuel Vásquez Alfaro
Litigation and Corporate Lawyer