A New Law and Order: Civil Code Reform in Argentina

Since 1871 Argentina has been governed by the same civil code, with only partial revisions. In 2012, 141 years later, Argentina is set to adopt a new civil code. One that, unlike the current one based on European law, will have ”an entirely South American vision.”

“This project is a paradigm change in our culture. Now we have the opportunity to have a code with a Latin American vision,” said the president of the Supreme Court, Ricardo Lorenzetti in a press statement.

When the draft bill was first presented on 27th March, President Cristina Fernández de Kirchner described it as “a qualitative leap.” Now, five months later, the Congress’ Bicameral Commission for the Updating and Unification of the Civil and Commercial Codes has 90 days to analyse the new draft code and issue a unified final version for voting.

The first round of debates began on 14th August as the group took a look at the reforms to marriage, divorce, and assisted fertilisation laws. A series of public hearings was held until 8th of September in Buenos Aires and will continue throughout September in other Argentine cities.

“This is establishing real equality, developing individual rights, raising a new concept of property, and strengthening legal certainty in our trade relations,” said Julio Alak, minister of justice and human rights, in the first public hearing.

Divorce

Under the new code both civil and commercial laws will be brought together to form one legislative document. However, the most significant changes will take place in family law.

“It’s a great initiative to focus on changes to family law, it’s a cultural revolution,” says Leticia Kabusacki, a lawyer who has practiced family law in Buenos Aires since 1988.

The legislation governing divorce is to undergo the most significant changes and some of the most hotly debated. Currently the courts only grant divorce in two situations: when a couple has been separated for more than three years and both parties are willing to separate, or when a wrong has been committed against one of the parties in the marriage.

“There are certain grounds for divorce, like adultery, wilful abandonment, a serious injury, forcing your partner to commit a crime, and so on,” explains Kabusacki, “The problem is these people spend years in court trying to prove that one of these offences took place.”

Under the proposed new law the divorce system will become voluntary. If a spouse wishes to get a divorce they can simply go to court and file for one, without the need to explain why they wish to divorce or to prove that any offence has taken place.

The financial repercussions of divorce are also set to change. Currently the system requires everything gained during marriage to be split in half. However with the new law, couples can now come forward with their own plan to determine how their assets will be divided. “If there is a financial imbalance between the spouses there has to be compensation. That’s new and that’s important,” says Kabusacki.

Finally, the decision over the custody of children will also change, moving away from a bias towards the mother to providing an equal opportunity to be given custody. Today, the mother is typically given custody with broad visitation rights granted to the father.

It is one of the more contentious adjustments, and Kabusacki says this is the only change that worries her. “[The current system] reflects what most families do,” said Kabusacki, “I’m not sure if it is going to be a good idea to try and reflect ‘pure equality’ in the law.”

Civil Law Changes

Assisted fertilisation is another of the big topics gaining a lot of publicity as the commission looks to regulate a market that did not exist in 1871.

In vitro fertilization, the use of a sperm donor or a surrogate mother is practiced in Argentina but with no rules or laws governing it. This means the companies offering the services can charge whatever they want and if something goes wrong it is difficult to gain any legal grounds because there are no existing laws.

“We are currently under the worst scenario possible because assisted fertilisation, or anything besides the natural way and adoption, is not regulated,” says Kabusacki. “It’s very little what this new law is doing actually, we will still need more work after this, but it is a start.”

Although the laws in the new code will be very basic, they will lay the foundation for more changes that will have to be made in the future as technology continues to change and revolutionise the way humans reproduce.

“The legislature must be watching what is happening in science,” said Aída Kemelmajer de Carlucci, the former member of the Supreme Court of Mendoza. “Assisted reproduction has to have a specific regulation because it not only involves the genetic material of a couple but also that of a third party.”

Besides regulating the system, the new code will also seek to guarantee that the children conceived through assisted fertilisation are legally recognised by both parents, regardless of whose gametes were used. By ensuring this, the usual divorce laws will apply to a couple that separates, preventing one partner from potentially claiming they have no legal responsibility for the child ias their gametes were not used.

Significantly, the new code will uphold the current ruling that legally states a person’s existence starts with conception in the womb. For artificial fertilisation that means when the embryo is implanted in the women, making the collection of eggs and sperm legal because they are not considered ‘people’.

Other key changes regarding family law include a relaxation of adoption laws to permit unmarried couples, the ability of a child to take either parent’s last name, and stricter financial provision requirements for parents.

Common law couples living together for more than two years will officially be considered a union and will receive the same rights as a married couple. The economic relations between the partners will be registered in the form of a ‘pact’, under the common law registry.

Commercial Law Changes

While the civil law will hope to codify the interactions between people in a community, the commercial law, also known as business law, will apply to all commercial transactions.

One of the most substantial changes to the commercial law is the  recognition of indigenous communal property. The aim is to preserve cultural identity and under the new legislation, registered indigenous communities will own land in rural areas, “for as long as those communities exist.”

“The use of natural resources will now require the consultation of indigenous communities,” said the minister of the Supreme Court, Elena Highton de Nolasco in a press conference. In this way, the law will protect indigenous communities from companies coming onto an area rich in natural resources and simply claiming the land, taking advantage of the flimsy legal standing of indigenous people. At a time when indigenous groups face serious problems from encroaching agriculture and mining, the new code will empower these communities to resist on clear legal grounds.

Other adjustments in commercial law have been met with concern in the business community. A provision allowing changes to foreign currency contracts, for example, was added as restrictions on dollar purchases tightened, leading some to accuse the government of trying to ‘pesify’ the economy.

However, at the Commission meeting Lorenzetti attempted to clear any doubts, stating that the new law reflects a similar law in Brazil where contracts can be negotiated in foreign currency. “The debtor will shall have the possibility of freeing himself paying the equivalent in national currency,” he said. Lorenzetti added that it is reasonable because of the current global economy and used the convertibility law as an example of why the change is justifiable.

The new law will also govern electronic contracts, a contract made without the presence of both parties. The code will protect consumers who sign or accept a contract via email, Skype, or smart phone, thereby regulating the massive online market that is generally evolving too fast for the law to keep up with. In the future, say experts, new laws can be formed based upon how this basic standard performs.

The Opposition

Although the changes to the civil and commercial code are widely supported throughout the country, there are those who disagree, including the Catholic Church.

The Episcopal Conference of Argentina expressed their concerns in August, asking the commission to change the proposed new reforms in divorce, adoption, and assisted fertilisation.

“[These new reforms will create] marriages that are empty of content at the expense of the spouses and the good of the children, who have a right to grow up and be educated in a stable family,” said José María Arancedo, the head of the Episcopal Conference, at one of the Bicameral Commission meetings.

The conference argues that the new laws will fast track divorce and eliminate the values of marriage. They also argue that the new adoption laws will go against a child’s right to live in a family that consists of a married woman and man.

Arancedo also attacked the new code regarding surrogacy saying it will lead to the “rental of wombs,” and will create a situation that “degrades a pregnant woman.”

“It will be a source of further inequality because poor women will be exploited for this cause,” he said.

Finally, he argued against the reforms to assisted fertilisation in general claiming there are still severe ethical questions regarding the technology. “We need to recognise and grant legal protection to all human life from the moment of conception, and we need to remember that not everything that is scientifically possible is ethically acceptable,” he said.

Despite the church’s arguments, the president of the Supreme Court fully supports the revisions and says although there are some debates about the language being used, there is a general consensus amongst the members of the Bicameral Commission.

“It is a code that corresponds to the democratic language but is understandable for the common citizen. [The laws] are worth nothing if no one can understand them,” concluded Alak. “The new code will respond to the problems of reality today.”

Find out what locals think of the civil code reform here.