Puerto Rico Law Blog

There was a time when a consensual divorce was not permitted in Puerto Rico. The only option that couples had to obtain a divorce was to petition it the “old fashioned way”, and only if they qualified under one of the causes stated in the PR Civil Code (Cruel Treatment, Abandon, Separation, Adultery, etc.), then could their divorce be granted by the Court.

Then, Figueroa Ferrer v. Estado Libre Asociado, 107 D.P.R. 250 (1978) came along, and in this landmark leading case, two new causes were permitted: Mutual Consent and Irreparable Rupture. By means of a comparative study between other civilist and mixed jurisdictions, Chief Justice Trías Monge and the Supreme Court’s majority arrived to the conclusion that to force a divorcing couple to vent in court the reasons that they wished to divorce eroded Puerto Rico’s Bill of Rights, and diminished the Constitutional protection that “Human dignity shall be not be violated.”

The same free will that a consenting couple had to marry, now was able to divide that very same marriage, just as long as they stipulated all the aspects of their marital union through an Ex-parte, voluntary, non-adversative petition that their marriage bond be dissolved.

A rather liberal interpretation of this very same case led many attorneys to use another corollary of the consensual divorce as an adversative cause for divorce, where under the same rationalization protected the petitioner’s dignity by not having to testify in open court as to the specific reasons for wanting a divorce. The new casuse was named “Irreparable Rupture”, and was accepted in many (not all) courts in Puerto Rico. This new casue gave way to a private, discreet, and easier form of petitioning for a divorce, without having to disclose the intimacies that led to the couple’s breakup in a potentially embarrassing forum, like a trial court.

Many detractors of this new cause were skeptic of PR Supreme Court’s viability of such a cause, and held that it was a sharp blow to our government’s interest to safeguard family unity. Regardless, it was accepted, and many divorces were “fast tracked” using this cause. The main problem lies in that the other causes for divorce, such as infidelity or cruel treatment, require a higher burden of proof, which was not always the case for divorcing couples. Perhaps the elements needed for Cruel Treatment were not present, and the couple just wanted a divorce, but one of the spoused declined cooperating for a Mutual Consent divorce. Irreparable Rupture served as a safety valve for a person who wanted a divorce, but whose partner resisted cooperating.

This brings us to our most recent case regarding this matter: Salva Santiago vs. Torres Padró, 2007 TSPR 101. PR Supreme Court dealt a deadly blow to “Irreparable Rupture”, explaining that it was only another side of “Mutual Consent”, which REQUIRED cooperation between both divorcing spouses. No longer can an uncooperative spouse be forced to divorce, if one of the causes for divorce are not present. Our highest forum holds that “if the legislator wants another cause for divorce, then it should be adopted through legislation into our Civil Code”. Our Supreme Court, in an effort to draw the line between the three separate powers granted by our Constitution, declines the creation of a new cause through jurisprudence.

Only time will tell, if Irreparable Rupture will ever be adopted as an adversative cause for divorce. As for now, the “safety valve” of Irreparable Rupture has been irreparably closed, and future divorces granted in Puerto Rico will undeniably require one of the causes for divorce stated in our Civil Code.