I recently got an email from a woman asking about getting terminating her Mexican marriage: she had gotten married to a Mexican citizen and the marriage hadn’t worked out as the couple had hoped, so she moved back to her country of origin and was now interested in breaking off the marriage.
This brings up an interesting topic, one I hadn’t really thought about for quite a while because I have been immersed in the legal world in Mexico for so long that I really took it for granted that everyone knows this stuff. When I got the question, I first realized what a great question it was, because of the complexities involved and then decided it would be great fodder for a blog post. So here we go.
First off, the question came in the form of various sections, the first being:
Can a non-resident get divorced in Mexico?
The answer to this is yes, without a doubt a non-Mexican can get divorced in Mexico. Due to the nature of divorce, anyone CAN get divorced in Mexico, as long as the situation meets certain requirements:
The first requirement, probably the most important comes from the Codigo de Procedimientos Civiles (at the state level, in the case of Quintana Roo the article is 154), which deals with competence of the judge. Competence basically means that the judge is legally able to resolve the conflict; therefore, in order to decide if the judge in Quintana Roo can hear a case of divorce, we look up divorces in article 154. After reading through the long list of possible types of cases that a civil court judge can resolve, we get to the penultimate fraction that talks about divorce:
154. The competent judge is:
XII. In divorce trials, the court where the marital dwelling is located, and in case of abandonment of the home, the court where the abandoned spouse resides.
Marital dwelling is according to the law (CCF Art. 163) the place established by common accord by the spouses. In the case of the woman who contacted me, the marriage took place in Mexico and the couple lived together in Mexico for a while, before the husband started to move around looking for work and the wife decided to return to her home country. At the time that I received the email, my opinion was that because the husband had left the marital home before the woman repatriated, I said that she could probably claim that she was the abandoned party and, therefore, was able to promote the divorce trial outside of Mexico (if the laws in her country allowed it, which they probably would because the laws in most of the Western world in this type of issue are fairly similar).
However, while writing this article, it occurred to me that: a) it might be a hassle to prove that the abandonment happened before the wife returned to her country and b) there might be “due process” issues about promoting a divorce internationally when the defendant is out of the country where the divorce is being promoted, mostly because he may not have a fair chance to defend himself/participate in his own defense/face his accuser/etc.
Upon response from the divorcee, I learned that she was actually planning on returning to Mexico anyway, so she would be carrying out the divorce here, which makes things easier for her and eliminates any aspects of international law/jurisdiction that we may have thought about previously. Therefore, what does a non-resident in Mexico have to do to promote divorce proceedings?
A special permit is needed from the Instituto Nacional de Migración in order to proceed with any divorce. The permit is rather expensive: it costs about $6,000.00 pesos (as of this writing on 14 August 2012), and takes a week or so to process. The permit has an expiration date of 90 days, so make sure that your attorney has everything else ready before they apply for the permit or they may need to apply/pay for it again (personal experience talking here).
Other than this formality of the permit from the INM, the divorce in Mexico involving a foreigner is no different than any other divorce. A lawyer will probably need to be hired and he/she will promote the case before the state-level civil authority, which from start to finish can take anywhere from six months to two years.