• The Star Staff

House speaker praises new Civil Code; law professor notes gaps

By The Star Staff

While House Speaker Carlos “Johnny” Méndez Núñez Núñez on Sunday praised the new Civil Code, which went into effect over the weekend, the Puerto Rico Bar Association says the new text is full of gaps that have yet to be addressed.

As the main source of private law in Puerto Rico, the Civil Code regulates the main issues that dictate the life of a person and their daily interactions in society. It is the set of laws that regulate aspects of people’s private lives such as marriage, divorce, inheritance, property rights and contracts. The document, which replaced a Civil Code from the 1930s, became Act 55 of 2020, better known as the new Civil Code for Puerto Rico.

“Today a new instrument comes into force that will directly assist our people to face the challenges of the present and the future with a tool -- the New Civil Code for Puerto Rico -- that is in touch with the times, with our idiosyncrasies, with our society, and focused on an avant-garde legal prism, always ensuring the rights of all,” Méndez Núñez said in a written statement. “I believe that the new Civil Code is central to the socioeconomic development of modern Puerto Rico and I have no doubt that it will serve as a model for other jurisdictions in the nation.”

Méndez Núñez said he still remembers the day the Code was passed. The document went through a series of public hearings and its changes were criticized by numerous sectors. Former Rep. María Milagros Charbonier headed the effort.

“Many in the political opposition said it was impossible, as they alleged that it couldn’t be done, that they had been studying it for 30 years and that the entire Code couldn’t be done; they even asked for another decade of ‘study’ for it,” the House speaker said. “Those are many of the same people who tried to pass, in a hurry, without a public hearing, a compendium version, with only a few cosmetic changes, in an extraordinary session of only two days. Many of them today validate our effort with their support. A better example is that the minority leader, comrade Rafael ‘Tatito’ Hernández, voted in favor of the new Civil Code when it came down for consideration in the House of Representatives in May of this year.”

In 1997, Act 85 was signed, which created the Permanent Joint Commission for the Review and Reform of the Civil Code of Puerto Rico, which evaluated changes to the Code since then.

“I want to thank the members of our delegation for their efforts during this four-year period, including all the employees and advisers who worked long and continuous hours for more than three years, including during the historic period after the impact of hurricanes Irma and Maria, to achieve completion, in a process open to all, since the measure, after being filed in a press conference on June 18, 2018, went through 18 public hearings,” Méndez Núñez said.

However, former Court of Appeals Judge Migdalia Fraticelli, a law professor, noted in a Telemundo report that the document has gaps, most notably in the statutes related to Family Law.

She asked for an extension of time to further study the document. Among the gaps, she mentioned that the rights of unmarried couples, which are known as concubinato, are not clear. The document also recognizes surrogate mothers but does not regulate the process that will allow individuals to enter contracts with surrogate mothers.

The document also made changes to inheritance laws because now an individual with heirs will be able to do away with half of his or her assets and give the other half to heirs. Previously, two-thirds of assets had to go to heirs.

Among the most notable changes is the extension of the rights of the born to the unborn, so that they are treated in the same way during the gestation period. This extension, however, alleges that “it does not in any way impair the constitutional rights of pregnant women to make decisions about their pregnancy.” It is not clear how, in practice, the right to abortion can be affected, something that various organizations have denounced.

Regarding divorce laws, the new code eliminates the grounds or reasons for couples to divorce, creating only two processes to dissolve a marriage. The parties can, jointly or individually, submit to the court the divorce petition citing irreparable rupture or mutual consent. It also allows divorce to be decreed by public deed.

Under the old code, marriage was defined as the union between a man and a woman. The new code establishes that it will be the union of two natural persons. Minors are prohibited from marrying under the new code. However, minors who are 18 years of age can marry with parental consent or the authorization of a judge.

The new Civil Code also allows a trans person to change his or her gender on a birth certificate but to do so, the person needs court authorization. The change will be made in a note in the margin of the birth certificate.

Elsewhere in the new Civil Code, which entered into force on Saturday, the area of inheritance was also subject to changes. For instance, if the deceased person did not establish who his or her heirs are through a valid will, the Code provides a succession order. The new Code places the widow or widower as the first in the order of succession, on the same level as the descendants.

In the event that neither a descendant nor a spouse survives the deceased person, the estate will be awarded to the ascendants or parents. If the ascendants are also deceased, the next in line are the preferred collateral relatives (brothers or nephews) and, in their absence, any ordinary collateral relative. In the absence of any of the above, the last in the order of succession is the government of the Commonwealth of Puerto Rico.

In the event there is a will, the testator must divide his inheritance in two halves: One half of the estate will be reserved to the forced heirs but he or she can do whatever he wants with the other half of the estate. Previously, the testator had to leave two-thirds of his or her estate to the forced heirs.

Also, only opened wills or handwritten wills are valid under the new Code. So-called closed wills were eliminated. Wills written when the person is in imminent death or during a pandemic, will be accepted as special wills.

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