La homologación de las sentencias de divorcios dictadas en el extranjero y su aplicación en el Ecuador

Divorce judgments of Ecuadorian citizens issued abroad have not been approved in Ecuador, although the procedure is provided for in Article 143 of the Organic Code of Judicial Function, which provides that " ... The knowledge of the causes for the recognition or homologation of the foreign judgments, will correspond to the room of the Provincial Court specialized in reason of the matter of the district of the defendant. Once the sentence declaring the recognition or homologation of the foreign judgment is executed, the execution of the same shall be the judge or the first level judge of the domicile of the defendant, competent in reason of the matter ... ", the Ecuadorian judges have not Given to compliance with existing regulations based on Article 129 of the Civil Code that states: "Marriage contracted in Ecuador may not be annulled or dissolved by a divorce, but by a judgment pronounced by Ecuadorian judges, when one of the Spouses were Ecuadorian and there are children under the age of 18 or under their dependency residing in Ecuador. ", Thus, generating defenselessness to the procedural parties, legal insecurity and non-compliance with treaties signed by Ecuador with the international community. The General Organic Code of Processes in force in our country, although it intends to solve the problem of homologation, neither will it do so because Article 104 of the same legal body provides that to give way to Homologation must be met the following requirements: "1. Having the external formalities necessary to be considered authentic in the State of origin. 2. That the sentence passed in authority of res judicata according to the laws of the country where it was issued and the necessary annexed documentation is duly legalized. 3. If so, be translated. 4. That it be credited with the pertinent procedural documents and certifications that the defendant was legally notified and that the proper defense of the parties has been assured. 5. That the request indicates the place of summons of the natural or legal person against whom the resolution issued abroad is intended ... ", within which there is no provision that refers to the legal obstacle that has arisen until Today, as it continues in force Article 129 of the Civil Code and in respect of 414 of the Code of Civil Procedure has been repealed. The lack of homologation of divorce judgments abroad affects Ecuadorian society and, in general, the migrant community, who, due to different circumstances, live in foreign countries and find it difficult to process divorce in Ecuador. Judicial proceedings in the countries in which they reside. Once a sentence has been handed down abroad, the difficulties of migrant fellow citizens begin, because when the homologation process began in the country and after the process was substantiated, they have been denied the right to homologate for contravening internal public law. Moreover, the problem is accentuated by the provisions of the Sánchez de Bustamante Code of Private International Law, which provides in article 423 the requirements for executing foreign judgments, in which we have the following: "1.- That it has competence to hear the matter and to judge it, in accordance with the rules of this Code, the judge or court that has dictated it; 2. That the parties have been summoned personally or by their legal representative, for the trial; 3. That the ruling does not contravene the public order or public law of the country in which it wants to be executed; 4.- That is enforceable in the State in which it is issued; 5. That is authorized by an official or official interpreter of the State in which it is to be executed, if there is a different language used; 6. That the document in which it appears shall meet the requirements necessary to be considered as authentic in the State of origin and those which it requires, in order to have faith, the legislation of the State in which it is intended to comply with the judgment ", is To say, subsists in the third paragraph of said legal provision the impediment for the divorce judgments to be executed in Ecuador for contravening the public law of the country. The existing and latent problem of the homologation of divorces can have two readings: the first would be that the legal provisions envisaged both in the Organic Code of Judicial Function (Article 143) and in the General Organic Code of Processes (Art. 104), try to give an exit to the provisions of Article 129 of the Civil Code in force, with the control of legality that the Ecuadorian judges must do in the knowledge of the causes, which would be equivalent to that the sentences of divorces are known By the internal judges; And the second reading, is that an alternative should be sought through the reform of the Civil Code, which would avoid having several readings on the processing of judgments to approve foreign divorce judgments, this being the objective of the investigation that I will perform

• Tác giả chính: Lescano Obando, Imelda Dulcelina (author)
• Định dạng: bachelorThesis
• Ngôn ngữ: spa
• Được phát hành: 2017
• Những chủ đề: DERECHO; SENTENCIA; DIVORCIO
• Truy cập trực tuyến: http://dspace.unl.edu.ec/jspui/handle/123456789/18649