Divorce in Ecuador & Ecuadorian Prenuptial Agreements

Divorce in Ecuador & Ecuadorian Prenuptial Agreements

 

Written and Revised by Sara Chaca, Attorney – Abogada

July 24th, 2019


When moving to Ecuador, besides all of the lovely sites to see and things to do in this remarkable country, the concept/idea of love itself often arises for a foreigner.  And of course, where comeas love, often comes marriage (or at least one party’s insistence that the marriage part cometh at some point), and so notwithstanding that shortly following on the heels of a couple’s wedding bells there might also then be a baby carriage (mind the pun), any foreigner would be well advised to understand that even in Ecuador, love doesn’t always work out in the long-term, hence in turn a concept which gives rise to the consideration of divorcing in Ecuador.  Thus, therein lies the rub, as depending on the state of the relationship that a foreigner has with their then in such case soon to be ex-spouse (and per the married couple’s willingness to part amicably or in contested manner), can for a couple’s Divorce in Ecuador, make all the difference between, say, “The War of the Roses” Vs. “The War of the Worlds”!

Given that the divorce rate in Ecuador has risen markedly in recent years, boasting a nearly 90% rise in the 10 year measuring period of 2006 to 2016 (see referenced article here: https://www.metroecuador.com.ec/ec/noticias/2018/03/06/proceso-divorcio-ecuador.html), it is vitally important that foreigners understand that marital bliss in Ecuador is as with everywhere else, not assured, and moreover isn’t something that should be in any way counted/depended on when entering into marriage in Ecuador.  As in the event of getting a divorce in Ecuador, all bets are off, and everything simply comes down to numbers and percentages, just the same as in any community property state in the US, noting that the divorce process in Ecuador generally divides all Ecuadorian marital assets earned, gained or brought into the marriage as 50/50, between that of any two divorcing spouses.

That said, and as per Ecuadorian divorces, there is a fairly reliable way around having to cut straight down the middle of one’s Ecuadorian assets per the termination of their marriage with their divorcing spouse in Ecuador, and this is exactly the same way as it is in the US, which here in Ecuador too is called a “Prenuptial Agreement” (“Capitulaciones Matrimoniales” in Spanish), which is expressed in Article 150 of Ecuador’s Civil Code (“Código Civil Ecuatoriano” in Spanish).  Per Ecuador divorce laws, the way an Ecuadorian Prenuptial Agreement is most typically done in Ecuador, is that prior to entering into marriage in the country, the couple visits together to an Ecuadorian Notary to sign said Prenuptial Agreement, which such Ecuador Prenuptial Agreement will usually have been duly prepared by the Ecuadorian Attorney of the more well propertied party to the upcoming marriage, which in many cases is a/the foreigner.  It’s also possible to have a statement recorded in a couple’s Ecuadorian Marriage Certificate in a similar way to the clauses/recitals that are generally proclaimed within a more formalized Prenuptial Agreement in Ecuador – however, this is a far less commonly utilized method, not to mention highly unromantic for purposes of consummating a couple’s presumably most important date ever together (that being their “Wedding Day”) in beginning their well intended lifetime together, and in any case is presumably more susceptible to later on being disputed by the less propertied party to the marriage who might then potentially claim that the excitement of their Wedding Day itself had caused them to overlook that perhaps so called, “defect”, in and of their Ecuadorian Marriage Certificate.  Naturally, a more formalized and separate document that is signed/notarized days, weeks or even months in advance of a couple’s date of marriage, speaks volumes to the couple’s mutual intent prior to having entered into their marital union, and serves as a testament to the good and practical way of a couple simply having “gotten that formality taken care of”, prior to embarking on their journey together in and of the love, kisses and hugs (and perhaps having children) part of the marriage, that will/would occur in the timeline of days, weeks or months following them having officially recorded their Prenuptial Agreement in Ecuador.

Another possible way of averting a financial (and perhaps mental) meltdown from a possible divorce in Ecuador, is in the form of what one would refer to as a “Postnuptial Agreement”, by signing and sealing (notarizing) a “Dissolution of Marital Partnership” (i.e. Dissolution of Assets) document in Ecuador – notably, this type of document can/will be done at any time after a couple has married (whether the couple was married in Ecuador OR if they were married in another country..), and so it in that such case governs as to the married couple’s individual/combined assets that are domiciled (located) in Ecuador, and what will occur in the event of their divorce or separation in Ecuador (this type document also states that any assets acquired by either party thereafter the date of recording said document in the Ecuadorian Civil Registry [“Registro Civil Ecuatoriano”] shall be solely owned and thus inure to the exclusive enjoyment and entitlement of/for only that one single person in the marriage who specifically contributed, earned, gained or brought those new assets in or to Ecuador).

Aside from the above bespoken concept of Prenuptial & Postnuptial Agreements in Ecuador, respectively, the most serious talk that one can ever have with their spouse is that of the notorious “Divorce Chat”, which other than for that rare bird married couple who can do so over a delightful bottle of wine, the reality of the matter is that such a discussion more often causes at least one of the parties in that particular conversation to instead become angered on a whim.  And note as well that besides the earlier above referenced typical 50/50 division of marital assets in Ecuador (i.e. also known as division of property in Ecuador) that are verifiably identified as being domiciled/present in Ecuador itself, there is also the subsequent divorce concerns related to Child Support in Ecuador. In the case of any/all children that resulted from the marriage, it is then unavoidable that Child Support laws in Ecuador become of issue, including the possibility of any court ordered DNA test Ecuador for where Ecuador Adoption and/or contested children matters arise, and that also being whether a couple is married, had the children before the marriage, or otherwise. And to that end, the further need to decide where and with whom a married couple’s children as well as pets will live following the couple’s breakup having become official (per any Ecuadorian Judge’s lawful order to that effect), is also of major consideration to boot.  Furthermore, the way a Divorce is handled in Ecuador can and will differ greatly, based on the specific facts and circumstances at hand, plus of course whether children resulted from the marriage as well as their ages, in addition to how and where each person (parent) and/or child plans to live for going forward purposes.

With respect to all of the relevant matters and possibilities that have been discussed in the above, naturally take into account that this article is meant to provide a general explanation of the herein referenced marital and divorce related concepts, and thus it is not intended to go so far or to the precise point of specifying exactly who, how and in which case one party can/will recover more, less, better or worse from the other party or effectively win/lose their divorce case or whom any children resulting there from the marriage will reside with following the couple’s divorce, respectively.

In conclusion, and as per the above paired concepts related to love and hate within (or following) a couple’s marriage and the prospects of any such couple getting divorced in Ecuador, one might well in the end question the renowned words of “whether it is better to have loved and lost than never to have loved at all”, that perhaps can best be answered with yet another famously penned line, which is to say, “all is fair in love and war”.




Sara Chaca (Attorney – Abogada) is a seasoned Ecuadorian Lawyer, who principally serves Expats in making their moves to Ecuador, as well as for any legal issues that arise or become actionable for her Expat clients to undertake in their new lives here in her beautiful country. Sara resides in Cuenca with her family, which consists of her American husband and 2 daughters (as well as her parents and siblings), and when not working, she enjoys spending time with her family in Cuenca’s majestic Cajas Mountains and local parks & fairs of Cuenca, plus visiting the coast as well as the many gem towns of Ecuador. Sara’s personal email address is sara@ecuadorvisas.com and her law office’s fully informative website is www.ecuadorvisas.com for you to visit at any time of day or night – plus, her personal Ecuadorian cell phone number is 099-296-2065 and her Toll Free “800” phone number for US & Canadian callers is 1-(800)-655-1581. Sara has a less than 24 hour first response policy, in that if you email or call her, she WILL return your first email or first phone call in less than 24 hours (more typically in closer to 24 minutes). Most importantly, all first time consultations with Expats for any type Visa or Legal matter(s) are always FREE OF CHARGE.