The Current Marriage Consensual Divorce

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The current marriage consensual divorce


When talking about marriage separation by mutual agreement we immediately know that this occurs when the parties agree the parts of the marriage, this is faster, it is the fundamental that people are clear that we can do it through the judicial unit or in the notaries.

We must be clear that the family is very important and that we must try to keep it and protect our home, but when the situation is already inevitable to save the marriage because there have been unsustainable situations and the daily living in the couple is too hostile as the most hostile recommended in these cases is to accept and terminate the marriage reaching an agreement the parties where divorce is made by mutual consent.

This is the consent of the parties, what is meant is the consent between the parties both the husband and the wife agree on the decision they have made, other aspects must also be considered, but it is still easier and faster when They have no conflict of goods; And, if they had these, they could also be resolved both in the judicial units and in the notaries.

To carry out this divorce we must submit a law.

Once the lawsuit is qualified, the legislator gives the date for the realization of the hearing, before giving his rul.

Seeing that the parties agree to finish this marriage bond, the sentence is given so that the marriage is dissolved, this in turn will be marginalized in the Civil Registry, once the sentence is executed.


In former laws there is no divorce as a legal figure as in the society of which we are part of today, which asks that judicial judgment be issued and that the causes or causes of divorce be fulfilled, which are precisely listed in the law. Instead was a faculty of repudiation, already unilateral at the beginning of fraud by the husband and then consensual for the participation of the two spouses.

The Catholic Church established the indissolubility of marriage, however, the various interpretations that the canonists gave to the word of Christ, served as the basis for the prohibition of divorce, “divorce was established when life in common became unbearable for the Two spouses, but with the mere separation of bodies, with which the two husbands were dispensed from the duty to cohabit ”.

The divorce was carried out before the public notary by mutual agreement of the spouses, through a lawyer, by public deed the cessation of civil effects of all religious marriage and the divorce of civil marriage, without prejudice to the competence assigned to the judges by the law. “The family defender will intervene only when there are minor children: for this purpose the agreement that the spouses have reached in order to give their concept in what has to do with the protection of minors will be notified." 

In the reform of the Civil Code in 1912, divorce is introduced by mutual consent “the rupture of the valid marriage bond produced on the road of the conjugues, by virtue of a judicial resolution”. 

Since 1935 the divorce by mutual consent was carried out by means. In the year of 1940 the summary process for divorce by mutual consent was suppressed. In the same way in 1958 the semi -marriage or judicially authorized marital marriage is determined, also retounted by the causes of divorce and some contradictions of the law were corrected.

At the present time, our legislation has undergone changes, in relation to marriage; Thus, we have the notarial law in its art. 18 numeral 22 where he provides that “process divorces by mutual consent, only in the case in which the spouses do not have minor children or under their dependence. …" 

With the validity of the General Organic Code of Processes and its Art. 334 numeral 3 stipulates as a voluntary procedure the divorce or termination of de fact by judicial via. 

Access to the Administration of Justice is free and is a basic and fundamental public service of the State that we are entitled to all people without any distinction, but the competence of public notaries to know and process divorce by mutual consent when there are no dependent children It is born from the notarial law since the public notary is responsible for giving public faith of any procedure that is carried out in its presence by raising it to public deed so that the relevant legal effects are supplied since it is the “public official who authorizes with its Fedataria Faculty the acts and contracts that determines the laws ". 

News and importance of the subject

The research issue is currently and importance since the oral system implemented by the COGEP benefits the parties and speeds up this type of procedures for the administrators of justice since there are no dependent children so the only point to be treated will be divorce And the resolutions will be issued at the same audience withdrawing the parties with the respective ruling, thus favoring the constitutional principle of free justice.


With the arrival of Christianity, monogamic marriage is born, being the one in which each man has only one woman and each woman just a man. If divorce is accepted, you can change couple. The monogamy is currently a “marriage system in which only a wife is recognized by legitimate." 

There was divorce due to mutual dissent, but the reasons for women were subjected to a more rigorous analysis than those of man. Also in ancient Greece there was divorce due to mutual dissent and repudiation, but the man had to restore the dowry to the woman’s family in case of separation.

In the high Roman Empire the most frequent cases were those of concubinage and free union, in all social classes. Marriage, when practiced, obeyed a purely economic objective: the transmission of heritage to direct descendants instead of other family members or society and a policy of perpetuating the caste of citizens.

If he lacked heritage, it was unnecessary to marry, and if he was a slave, impossible (only from the third century it was allowed to marry slaves). The instability of couples seems to have been very frequent and the number of very high divorces. In the low Roman Empire, divorce was something uncommon, until the time of the emperors, where the maximum ‘marriage debent esse was coined ”(marriages must be free), where the husband or wife could renounce him If they wanted it. With the arrival of Christianity, divorce was prohibited due to the conception of marriage as a sacrament instituted by God and whose link was unbreakable.

From the 10th century, although the divorce was prohibited, there was marriage nullity, that is, the marriage declared void if it was shown that there had been no different reasons. It was the ecclesiastical courts who processed the statements of matrimonial nullity. However, Luther’s reform admitted divorce although only in very serious cases.

This reform even caused England to embrace the same because his king, Henry VIII wanted to divorce his wife, Catalina, and the Church of Rome did not allow it. Italy in 1970 was from the last European countries to definitively approve it. In 1796, France incorporated the breakdown of the marriage bond in the law promulgated on November 20, which served as a history of many of the current laws. Divorce has caused great controversies in mostly Catholic countries, since the Catholic Church does not consider divorce possible.


Of the Latin Divortium, of the funny verb, separate, to leave each by its side. It can be defined as the rupture of a valid marriage living both husbands. This already indicates a fundamental distinction between divorce and nullity of marriage in which it is not possible to speak of dissolution, for never legally existed, because of essential or insubsanable impediments.

Etymologically it comes from the Latin voice divortium, this is it makes it clear that the fact that after the two spouses have traveled, a stretch move away from different paths, this is each one goes by their side. It is also said that divorce comes from the Latin divertere, which each means on the side of it, so as not to get together again.

In Ecuadorian legislation it is called art divorce. 106.- “The divorce dissolves the marriage bond and leaves the spouses in aptitude to contract new marriage, except for the limitations established in this code. Similarly, it will not be able to marry, within the year following the date on which the sentence was executed, who was an actor in the divorce trial, if the ruling occurred in rebellion of the demanded spouse demanded. These prohibitions are not extended to the case in which the new marriage is carried out with the last spouse ”.



In our Ecuadorian legislation, divorce is also typified in the following articles:

Art. 105.- Marriage ends:

  • 1st.- For the death of one of the spouses;
  • 2.- By executed sentence to declare the nullity of marriage;
  • 3rd.- By executed judgment that grants the definitive possession of the assets of the missing person; Y,
  • 4th.- By divorce. 


Art. 106.- Divorce dissolves the marriage bond and leaves spouses in aptitude to contract new marriage, except for the limitations established in this code. Similarly, it will not be able to marry, within the year following the date on which the sentence was executed, who was an actor in the divorce trial, if the ruling occurred in rebellion of the demanded spouse demanded. These prohibitions are not extended to the case in which the new marriage is carried out with the last spouse.

Art. 107.- By mutual consent can spouses divorce. For this purpose, the consent will be expressed as follows: the spouses will express, in writing, in themselves or through special attorneys, before the civil judge of the domicile of any of the spouses. 

Art. 109.- The spouse less than eighteen years will need for divorce the authorization of her general curator or, in the absence of this one, that of a special curator. 

Art. 111.- In divorce trials, the minor of eighteen must be represented by his general curator or a special curator. 

Art. 113.- Any of the spouses will have the right to request that the conjugal company is settled in the same divorce judgment and the amount to be delivered in accordance with the previous article is set. 

Divorce by mutual consent or consensual

"This kind of divorce, avoids scandals between the spouses and the circumstance of not establishing the culprit, but does not take effect without judicial approval issued by judgment by the competent civil judge, otherwise it would be void.".

According to the definition given by DR. José García Falconí to the divorce by mutual consent as the free and spontaneous will of the spouses to terminate the marriage bond, it is a friendly termination without conflicts, avoiding all kinds of scandals that have an impact on stability many times of the children.

“This type of divorce can be done through judicial means in the case of dependent children since the legal situation of minors is resolved or through notaries who also have competence to process this type of divorce but only if not There are dependent children ". 

Procedures in the General Organic Code of Processes

The Constitution of the Republic in articles 168 and 169 prescribes that the substantiation of processes in all subjects, instances, phases and proceedings will be carried out through the oral system. In compliance with this mandate, the Judicial Council proposed and elaborated the COGEP, which was approved by the National Assembly, and that transformed the judicial system written to oral, that is, “the one who, in its fundamental periods, is substantiated by word before the Court that has to resolve it, without prejudice to the signed act where the acted is recorded ”. 

The General Organic Code of Processes is a tool that governs the procedural activity of non -criminal matters and takes a great step for the application of orality in the hearings in which the judge resolves in the presence of the parties and withdraws with a verdict.

Voluntary procedure

The issue of this investigation is processed through the voluntary procedure that is that in which the judge exercises voluntary jurisdiction, since in the contentious jurisdiction, it is in which it fulfills the essential function of it solving conflicts of rights or interests.

It is in the exercise of voluntary jurisdiction that the judge knows or attends to matters that due to its nature or by reason of the state of things, are resolved without contradiction, so they are processes without conflict, but not judgments that are processes with conflict.

Matters submitted to the voluntary procedure

The art. 334 of the COGEP states that “voluntary procedures will be considered, with exclusive competence of the judges, the following:

  • Payment for consignment;
  • Basin surrender;
  • Divorce or termination of de facto by mutual consent, provided there are dependent children;
  • Inventory, in C the cases provided for in this chapter;
  • Partition;
  • Authorization for the sale of goods of girls, boys, adolescents and people subject to guardian." 


Criteria in this regard

Divorce by mutual consent carried out through the judicial route as a voluntary procedure to find an efficient result with the reduced effort and lower costs. It is considered sensible to offer viability to this initiative, whose essence is to benefit the constitutional initiation of free justice in divorce by mutual consent, it is a requirement that voluntary jurisdiction to competent judges be granted, because with the preparation of a preliminary draft of reform to article 334 numeral 3 of the General Organic Code of Divorce for Mutual Consent The rivalry will be granted to the rivalry of solving divorces by mutual consent.


The divorce is the dissolution of the marriage bond produced by misunderstanding in the coexistence of the spouses, in the development of division, the possession of the lower children of eighteen years of age, since one of the spouses is not in accordance with the spouses with the division, the contentious divorce where only one of the spouses intends to separate.

With the bill approved and for both notaries and the Civil Registry will be able to manage the dissolution of the conjugal society or divorce, when they are mutual and there are no dependent children, the intention of this is to decongest the work of the judges in the ordinary jurisdiction but does not provide for the economic, family and popular circumstance that some couples with interest in achieving the divorce are going through.

In our today’s Constitution of the Republic, I adapted a better criterion to marriage trying to assure people the full enjoyment of the rights established in the same.


It is essential that it is considered a reform in relation to divorces by mutual consent through judicial means, since the notaries as auxiliary bodies of justice management are not exceeded in the collection of fees.

In the situation of voluntary jurisdiction it is a requirement that the unique competition to the judges be transferred because they are responsible for managing justice and for the opposite the notaries who are the public faith of the acts held in their presence. 

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