The basic problem for all married foreigners in Chile is for a divorce to be recognized in Chile, your foreign divorce must not be in contradiction with Chilean law in general and the new divorce laws in particular. This can be highly problematic, as many other countries recognize various forms of “quick divorce” that are not recognized under Chilean law as they do not comply with the requirements of a Chilean divorce must follow.
There are essentially two options to do this in most cases. If you already have a divorce decree in another country, it must be reviewed and accept by the Chilean Supreme Court in a proceeding known as “exequatur”. This has been at best problematic in recent years.
Most of the foreign divorce decrees that have been rejected by the Chilean Supreme Court are because they failed to comply with the Chilean requirements for divorce in regards to the time required for formal legal separation, or that it failed to be issued as a formal court ruling in front of a judge. Informal or substituted proceedings such as mediation, administrative procedures, and even annulments will not be accepted. That means even if you got a “quick divorce” in another country and the form of the divorce process does not fully meet all of the requirements under the Chile's divorce laws, your divorce will not be recognized in Chile.
Starting a second divorce proceedings in Chile
Assuming your foreign divorce was rejected or obviously will not comply with Chilean law, your only other option is to initiate a second formal divorce proceedings in Chile. This means complying with the legal separation time and other requirements under Chilean law. The legal separation might be proven simply by presenting the foreign divorce decree, even if it is insufficient for a fully recognized divorce in Chile. It is proof of the separation. It can help establish the time formal separation started. The time requirements for a full legal separation can range from 1 to 5 years, even when both parties are in complete agreement before you can initiate a formal divorce proceedings. Among many other things, you must also show that support and alimony was fully satisfied during that time.
New Divorce Laws in Chile 2009
Now this is not fair in many respects, but part of the design of the new divorce law was to stop people from “shopping” for a more divorce friendly jurisdiction in another country in an attempt to get around the restricted nature of divorce in Chile.
Obviously there is still much to be desired in the Chilean divorce law, especially in relation to foreign divorces; but, progress has been made with recent changes in 2009 to correct some of the bigger issues related to recognition of foreign divorces. There are many foreign divorces that the Chilean Supreme Court previously rejected, that might now be recognized. This is especially true for those seeking to have divorces recognized in Chile that occurred before 2004 (year of the first divorce law). Many people that have consulted an attorney on this matter in the past or had their divorce rejected by the Supreme Court, should perhaps consider investigating again to see if the new amended laws will help their situation.
The full implications of the Chilean divorce laws go far beyond the scope of this short article. We strongly encourage all foreigners in Chile to seek competent legal council in Chile that can advise you regarding divorce and marriage laws in Chile; and, if needed, assist any legal council you might have retained in a country outside of Chile about the effects your foreign divorce proceedings might have in Chile.
Chilean Attorney Zandra Valenzuela is a graduate of the University of Chile Law School, a Professor of International law, and Senior Legal Council at Spencer Global Chile.