https://doi.org/10.37955/cs.v7i3.325
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eISSN: 2600-5743
Effectiveness of the dissolution and
liquidation of the marital
partnership through extrajudicial
acts
Efectividad de la disolución y liquidación de la sociedad
conyugal a través de actos extrajudiciales
Alexandra Anabel Jaramillo León
Abogada de los Juzgados y Tribunales del Ecuador, Mediadora avalada por el Consejo de la
judicatura, Magister en Derecho, mención en Derecho Procesal, Docente de la carrera de
Derecho de la Universidad Indoamérica
alexandrajaramillo@uti.edu.ec
https://orcid.org/0000-0002-7556-1166
Kevin Sebastián Velastegui Suarez
Estudiante de Derecho Universidad Indoamérica
kvelastegui2@uti.edu.ec
https://orcid.org/0009-0006-7009-3064
ABSTRACT
This research focuses on the powers granted by the Ecuadorian
organic and ordinary laws on the issue of dissolution and liquidation
of the marital partnership, as a topic of fundamental importance
within the Ecuadorian society due to its high demand of cases and the
procedural congestion that this entails within the judicial process,
which is why it takes great relevance to the issue of negotiable matters
such as the analyzed topic. Due to the fact that within the Ecuadorian
justice system since the enactment of the Constitution of 2008,
alternative means of conflict resolution are recognized, giving way to
the known Alternative Dispute Resolution Mechanisms where the
mediation, arbitration and notarial means stand out. For this research,
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the analytical-deductive method will be used, since a compendium of
the current Ecuadorian regulations will be made, and it will be
analyzed from a procedural perspective, addressing both the
advantages and disadvantages for citizens who opt for each of the
alternative dispute resolution mechanisms.
RESUMEN
La presente investigación se centra en las facultades que les concede
las leyes orgánicas y ordinarias ecuatorianas en el tema de la
disolución y liquidación de la sociedad conyugal, como un tema de
fundamental importancia dentro de la sociedad ecuatoriana debido a
su alta demanda de casos y la congestión procesal que esta conlleva
dentro de la vía judicial, es por ello que toma gran relevancia el tema
de materias transigibles como lo es el tema analizado. Debido a que
dentro del sistema de justicia ecuatoriano desde la promulgación del a
Constitución del 2008, se reconoce los medios alternativos de solución
de conflicto dando paso a los conocidos Mecanismos alternativos de
solución de conflictos de donde resaltan las vías de mediación y
arbitraje y la vía notarial. Para la presente investigación se utilizará el
método analítico-deductivo, pues se realizará un compendio de la
normativa ecuatoriana vigente, y se analizará desde una perspectiva
procedimental, abordando tanto las ventajas y desventajas que
conlleva para los ciudadanos que optan por cada uno de los
mecanismos alternativos de solución de conflictos.
Keywords / Keywords
alternative, dissolution, powers, procedural, compromiseable
alternativos, disolución, facultades, procesal, transigibles
Introduction
Notaries have existed since the very recognition of the law and
especially of the law, the issue of mediation centers is more recent,
since its institution was created only in 1997 as arbitration and
mediation law (LAM), however, it is not until the enactment of the
current Constitution where it begins to take legal relevance, since the
promulgation of the Constitution of 2008, which within its
regulations, specifically Article 190, recognizes the alternative means
of conflict resolution "Art. 190.- Arbitration, mediation and other
alternative dispute resolution procedures are recognized. These
procedures shall be applied subject to the law, in matters in which by
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their nature can be compromised" (Asamblea Constituyente De
Montecristi, 2008, p. 69).
Currently, these methods of conflict resolution have become more
viable alternatives to the judicial system in Ecuador, taking into
account the correlation that has had with the thinking of the
citizenship the fact of sowing a culture of dialogue or peace rather than
the use of a judicial route where it is based on the confrontation of the
parties; Due to the fact that in order to proceed by these means it is of
utmost importance the voluntariness of the parties to submit to these
means, however, despite this there is still a great deficit in terms of
knowledge of the powers that can be resolved by notarial means as well
as mediation and arbitration.
Alternative Dispute Resolution Mechanisms (ADR), are
internationally recognized as fast and beneficial mechanisms that put
an end to social conflicts, decongesting the judicial route; in this sense,
according to Márquez, G (2018)(2018), mentions that "alternative
means of conflict resolution are procedures different from
jurisdictional ones that aim to resolve conflicts arising between parties
with a problem of interests", a similar postulate is established by
González de Cosío (2004), since for said author, "ADR are processes
that can be used for the solution of differences in an amicable, flexible
way and without the need to resort to purely adversarial methods".
ADR is defined as "Processes that can be used for the settlement of
disputes in an amicable and flexible manner and without the need to
resort to purely adversarial methods" (González de Cosío, 2004),
which implies that the legal system of a State will define those matters
that could be suitable to be subject to this regime and with it, the
organs of the Judicial Function with powers to do so or auxiliary
organs of the same judicial function to whom such powers should be
attributed, The organs of the Judicial Function with the attributions to
do so or auxiliary organs of the same judicial function to whom such
competencies should be attributed, which according to our Organic
Code of the Judicial Function clearly refers to the notarial process as
an auxiliary organ, by which it is intended to resolve social conflicts in
a more peaceful and rapid manner.
Among the auxiliary bodies we have the notary's offices, which by Law
No 2006-62, published in the Official Gazette No 406 of November 28,
2006, which grants the power to process divorces by mutual consent
as long as there are no minor children and specifically in Article 23 of
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the Notarial Law, it empowers to proceed with the dissolution and
liquidation of assets of the marital partnership, through a notarial
process, as long as there is a clear and previous agreement of the
intervening parties in relation to what each one is going to receive,
regardless of whether one of the parties receives more than the other
and vice versa, given that in this process a quantified inventory is not
required.
Therefore, it is important to understand that in this way depends a lot
on the voluntariness of the parties, that is why we speak of
competences in issues or matters that can be compromised, taking into
account that the culture of dialogue is a means of conflict resolution
from the very beginning of a society, despite this, the emergence of
mediation and arbitration centers are relatively new and therefore
unknown by much of the citizenship, despite being a way that offers
results in a shorter time, In spite of this, citizens generally do not opt
for this route for the dissolution and liquidation of assets of the marital
partnership due to two important factors, the first one is the lack of
knowledge of the faculties and attributions that the mediation centers
have, the second factor is the insufficient number of mediation centers
and the lack of publicity, marketing or promotion that these centers
have.
According to the specialists of the Mediation Center of Santiago de
Chile, in mediation applied to relational conflicts of different nature,
three basic stages of the process are distinguished: a) Present state of
the conflict situation: The parties come to request mediation where at
least one of these perceives the conflict, accepting a collaborative
modality and considering that the other party can also assume it; b)
Period in which the conflict is worked: It is the stage in which the
communicational interrelation is worked, it must be a space of
conversation and dialogue; c) State in which the desired, the undesired
and the emergent are considered: This stage is based on the objectives
of the participants in the mediation, understanding them as producing
effective communication, responding to the needs of the parties,
recognition of the parties, recovery of total or partial harmony and
respect for the human rights of all those involved. (Alliende Luco, 2011,
p. 37-38).
The conflict generated by the constitutional norm in the Ecuadorian
case, in relation to the competence that both the mediation centers and
the notary offices have in the specific subject of the dissolution of the
conjugal partnership and distribution of the marital property, which is
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established both in the Arbitration and Mediation Law and in the
notary law that allows this subject to be carried out through these two
ways, and being the most used at the moment the notary way,
generates certain uncertainty at the moment that the liquidation of the
conjugal partnership is carried out through mediation, generally due
to the lack of knowledge that is evidenced by the members of many
municipalities regarding the faculties and faculties of the notary,
Generally, this generates some uncertainty at the moment of
proceeding to the liquidation of the marital partnership through the
mediation process due to the lack of knowledge that is evidenced by
the members of many municipalities regarding the faculties and
competences that this process has, generating conflict at the moment
of being legalized later at the request of the governmental entities that
demand its notarization prior to the liquidation of municipal taxes,
which causes a clash of entities or of ways.
Art. 23.- To proceed with the liquidation of the property partnership
or the conjugal partnership, for this purpose, without prejudice to the
jurisdictional power of the civil judges, the spouses or former spouses,
or the cohabitants linked under the regime of the common-law union,
as the case may be, may agree by public deed, once the conjugal
partnership or the property partnership that has been formed as a
consequence of the common-law union has been dissolved, the
liquidation of the property partnership. This agreement will be
registered in the corresponding Property Registry when the
liquidation includes real estate, and in the Mercantile Registry when
there are assets subject to this Registry" (Notarial Law, 2023, p. 4).
The fact that the issue of dissolution and liquidation of the marital
partnership is tacitly typified in the notarial law, undermines the
importance and autonomy of mediation as an alternative method to
the judicial process that has been recognized by the same Constitution
and that grants the citizens a faster and more effective option to solve
issues such as those mentioned in the previous paragraph, but that
would lose its essence when adding more requirements to it, such as
those demanded by the other municipal entities, either at the moment
prior to the liquidation of municipal taxes or at the moment of
registration in the Property Registry of each municipality.
In order to fulfill the objective of this work, it is necessary to
understand the different competences that notary's offices and
mediation and arbitration centers have to resolve matters in
accordance with the Organic Code of the Judicial Function as an
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auxiliary organ of the Justice System, so that, in this way, it can be
understood if the extrajudicial acts comply or not with the principle of
effectiveness, and more specifically in cases such as marital
dissolutions and liquidations. For this purpose, the competence of
both mediation centers and notary's offices in Ecuador at the time of
the dissolution and liquidation of the marital partnership will be
analyzed through a doctrinal, normative and practical approach,
pointing to principles such as normative hierarchy, constitutional
primacy, efficiency, celerity and effective judicial protection, as
fundamental pillars that guarantee the rights of the users.
Materials and Methods
When we refer to the legal environment and its development within
Ecuador, we can realize that one of the biggest defects is the
interpretation given to the written law, although before the law and the
Constitution the rule must be interpreted literally, however currently
has gained more power the harmonic interpretation or also known as
the sound criticism of the judge, despite the fact that the same being
under a punitive inquisitorial system is prohibited by law, which is
causing an increasing degree of citizen discontent with judicial acts,
This is where ADR, alternative dispute resolution mechanisms,
appear, which were created with the purpose of decongesting the
judicial system to provide solutions to citizens in a faster and easier
way, especially taking into account the great congestion that currently
exists in the judicial system, preventing issues that are clearly judicial
from being dealt with better and more efficiently through this channel.
"Access to justice is undoubtedly a human right that guarantees any
person the means through which they can find a way to provide a
solution to their daily difficulties in case they have a conflict." (Bautista
Castillo, 2018)
Taking into account that the existence of alternative dispute resolution
is not new, on the contrary, it appears within the history of the
beginning of civilized society, an act by which our civil code recognizes
the importance of conciliation since its entry into force, Thus, in 1963
the first commercial arbitration law was created, which attributed
competences to solve conflicts between merchants to the chambers of
commerce, but it was not until 1997 that due to the need to decongest
the judicial channel and the pressures of international organizations,
the law of arbitration and mediation known as LAM came into force, a
regulation that included comparative and doctrinal law.
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While the entry of ADR, within the Ecuadorian legislation in order to
allow greater agility in the justice system, was feasible due to the great
shortcomings or evils of the judicial function such as the delay in
judicial proceedings, lack of technology itself, lack of training of justice
personnel and corruption by justice officials; This has allowed the use
of these alternative mechanisms to be accepted by the society that was
looking for a quick and effective solution to such problems within the
justice systems, which is why with the passage of time is showing
increasing use of these alternative ways to solve social conflicts.
Marital Partnership and its dissolution
In order to better understand the problems involved in the dissolution
and liquidation of the marital partnership, we must begin by
determining the concept of marital partnership, which is the set of real
and personal property, assets and liabilities obtained between two
people who married before the law of Ecuador by civil law, This gives
rise to a solemn contract as determined by the Civil Code in force in
Ecuador, but as every rule has its exception, the marital contracts are
the exception, since they are used to separate certain movable or
immovable property that will belong to one of the spouses, thus
avoiding that such property becomes part of the assets of the marital
partnership.
According to the provisions of Article 139 of the Civil Code in force,
marriage gives rise to marital property partnership "Art. 139.-
(Reformed by Art. 19 of Law s/n, R.O. 526-2S, 19-VI-2015). - By the
fact of marriage celebrated in accordance with Ecuadorian laws,
property partnership is contracted between the spouses." (Civil Code,
Codification No. 2005010)..
It should be emphasized that the dissolution begins to be enforceable
without being necessary the termination of the marital bond, since
although it is necessary the legal union of two persons of legal age and
that do not have impediment to be able to marry and to give step for
the creation of a conjugal society, it is not necessary the termination of
this bond to be able to proceed with the dissolution of the conjugal
society, in accordance with what is established in article 189 of the Civil
Code, (National Congress Commission of Legislation and Codification,
2005, 2005), given that within the same aforementioned regulation it
clearly stipulates which are the causes for which the conjugal
partnership can be dissolved and they are the following:
For termination of marriage
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By judgment granting the definitive possession of the assets of the
missing party
By court sentence, at the request of either of the spouses
For the declaration of nullity of the marriage.
The conjugal partnership can be terminated by direct or simply
consequential means. Direct causes are those juridical acts that aim
precisely at its extinction, without affecting the marriage that subsists
as an institution. On the other hand, dissolution is consequential when
it occurs as a natural derivation of the termination of the marriage
without which it cannot survive (Parraguez, 1986).
Although it may seem strange, today it has become a very common
procedure among the citizens, due in a great number of cases to the
over indebtedness of one or both spouses, this is directly due to the
general financial state of the country where it is evident that with the
passage of time it is becoming more difficult to get a stable source of
work or that allows them to have a solid economic status, As a result,
since it is not necessary to terminate the marriage bond, the citizens
opt to carry out this procedure in order to protect their investments
and acquisitions or to be able to acquire new credits before the
financial institutions of the country.
According to Ramos (2021) we have "Active over-indebtedness, caused
by an event on the part of the consumer, which may be conscious or
unconscious, and passive over-indebtedness, which arises from
circumstances beyond his control, as in the case of sudden
unemployment".
The dissolution comes to be the inventory of assets both movable and
immovable belonging to the spouses obtained within the marriage, in
the same way it proceeds to inventory the assets and liabilities to be
able to adjudicate the part of the assets that corresponds to each one
of the spouses or former spouses, since as already specified in previous
lines, it must be taken into account that it is not a requirement the act
of divorce to be able to carry out the separation or partition of assets,
through a process known as liquidation of the conjugal partnership,
hence the correlation between both processes is born, due to the fact
that to proceed to the liquidation it is necessary as a previous
requirement to carry out a dissolution that consists in inventorying
both assets and goods, acquired within the time that the conjugal
partnership has lasted.
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Results
The liquidation is the legal institution to proceed to carry out the
division and adjudication of the assets to each of the former spouses
so that later they can appear as sole owners of each asset respectively,
however, this institution is the one that currently can be carried out
both by judicial means and by alternative means of conflict resolution,
within which the issue of the voluntariness with which the parties wish
to carry out the liquidation is fundamental to activate these alternative
means, giving way previously to the procedure established by Simon
(2018), which consists of five steps:
a. inventory and appraisal of assets
b. withdrawal of assets and payment of rewards owed by the
marital partnership to the spouses
c. imaginary accumulation of rewards owed by spouses to the
marital partnership
d. deduction of liabilities
e. determination of partible mass or liquid acquis (Simon, 2018).
This procedure allows to determine if there are profits and the
percentage that belongs to each of the parties or to their heirs if
required, allowing the parties to accept or repudiate their profits
partially or in their totality. This in consideration of the will of the
intervening party and at its best convenience, given that in certain
cases the debts become greater than the profits, allowing in this way to
reject such legacy and giving way to the State, also mentioned as the
fifth best nephew or privileged nephew, to take possession of all that is
recorded within the inventory made.
The legal provisions, contemplated in the Constitution of the Republic,
Civil Code, Code of Civil Procedure and the Notarial Law, raise several
possibilities on "The Dissolution of the Conjugal Society", the benefits
and rewards that each spouse has, the possibilities of responding only
for the personal debts of each spouse, clear procedures in order not to
harm any of the parties, producing a true economic balance between
the spouses..." (González Jiménez, 2012). (González Jiménez, 2012)
When speaking about the dissolution of the conjugal partnership and
its liquidation, it must be taken into account that the options depend
directly on the will of the parties to carry out the established
procedure, because if it is a dissolution by the will of only one of the
interested parties, it does not comply with the provisions of article 43
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of the law of mediation and arbitration, in such cases it is necessary to
proceed by legal means where it is a judge who acts as an independent
and impartial third party in charge of deciding and will force the
parties to accept the agreement that has been reached during the
development of an ordinary hearing, or to comply with its sentence.
Article 43 - Mediation is a dispute resolution procedure whereby the
parties, assisted by a neutral third party called a mediator, seek a
voluntary agreement, which deals with a subject matter that is
negotiable, extrajudicial and definitive, that puts an end to the conflict
(Mediation and Arbitration Law, 2006, p. 9).
However, the alternative ways are activated when the parties have the
will to reach an agreement without the intervention of a judge, taking
into account that it is a faster, more agile and economical way,
currently the mediation way is preferred for being in a certain way
more within the reach of the citizenship and resolving conflicts without
the need to impose the will on the parties, allowing to solve their
conflicts in a calmer, more agile and timely manner and with the
intervention of the mediator as the only external third party, thus
avoiding possible opportunities for corruption by any of the
intervening parties.
The ADR are optional processes to those of the ordinary jurisdiction,
because what it seeks is to resolve the differences between the parties
allegedly affected, where to a greater extent are processes of civil
origin, where if not acted in a timely manner may eventually initiate a
case through the courts, Although there are faster and less costly
processes through a third party known as mediator, who has the
obligation to maintain the confidentiality of the parties involved, being
the most used alternative means the notary and the mediation and
arbitration, for this reason there are laws that regulate both the
notarial and mediation procedures.
Urrutia & Jaramillo (2021) state that:
Social action, human dynamics and free will result in any form of
conflict, which at times can be resolved by mutual agreement
between the parties; and at other times the parties must turn to
a third party, either before a judge or a mediator, in order to
resolve their disputes and reach satisfactory agreements. (pp.
577-592).
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Among the variety of alternative dispute resolution mechanisms
(ADR) that exist in Ecuador, arbitration and mediation, and especially
the notarial process, are perhaps the most important or, at least, the
most practiced and used by the parties to reach a solution outside the
ordinary justice system. We will start by focusing on mediation and
arbitration, so much so that there is a specialized law with the aim of
expanding the regulation of both ADR in the legal system, the LAM.
Both arbitration and mediation arise when the parties, on the basis of
the principles of free will and contractual freedom, agree that their
disputes be resolved by such mechanisms.
When talking about alternative dispute resolution mechanisms we will
focus on two of them, the first one being the notarial route, then we
will focus on mediation and arbitration and we will analyze both the
structure and the procedure to be followed to carry out the dissolution
and liquidation of the company through each of these alternative
mechanisms and we will highlight the differences in carrying out such
procedure in each of the alternative routes to be treated, We will
highlight the differences between the notarial and the mediation and
arbitration procedures, since these two alternatives to the judicial
procedure are the most used by Ecuadorian citizens.
The notarial route is recognized as an auxiliary mechanism within the
Organic Code of the Judicial Function, where following the
constitutional hierarchical rules determined in article 425, we proceed
with the notarial law in which in its article 18, tacitly determines the
attributions that can be developed through a notary, which in
correlation with article 23 of the same law empowers to proceed with
the dissolution and liquidation of the conjugal partnership, since this
is a subject that can be negotiated before the law and having in mind
the dispositive principle and the voluntary nature of the parties, this
way of proceeding can be activated.
We will start with the definition of the notary, who is the one in charge
of attesting the facts, documents or statements that are presented
before the notary in charge, thus granting a presumption of truth, it is
a public service that provides an alternative way to solve problems in
a faster, more agile, timely manner different from the traditional
ordinary legal route, where one of the main changes is that the parties
do not need the presence of a lawyer to represent them since the
dissolution is carried out directly before a notary public only through
a dissolution act, an act that has been welcomed by the citizens who
consider the current saturation in the justice system.
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Its use is as old as the problems arising between human beings and the
search for settlement, only that in those remote times it was the chief
of the tribe or clan who, accompanied by the most representative men
of the people, resolved the difficulties and problems arising between
their fellow citizens. (Andrade, 2015, p 32).
The notarial route assumes specific powers of great importance within
society, performed based on principles of legal certainty, speed,
deconcentration, good faith and procedural loyalty, fundamental
principles that must be present in every legal act, providing a public
document with authenticity, giving value and legal certainty to the
document both in matters of substance and form, preventing possible
subsequent conflicts and opting for the peaceful resolution of conflicts
through a notary that generates legal certainty in the citizens who
come before him. Being the process through which the notary
evidences the facts or acts that have taken place in his presence, which
must be subject to the solemnities required by the notarial law, and
which will have legal effects.
We must be aware and be very clear that in the country, as it relates to
legal standards there is a strong preference for using ambiguous
models of justice, lacking in speed and judicial efficiency, which in
current times are no longer support and on the contrary lead to a
stagnation and setback in the process of improving the Judicial
System, Therefore, it is necessary a legal reform recommending the
application of new ways of administering justice by the Auxiliary
Bodies that have been created to decongest the Civil Courts, as new
laws that allow the principles framed by the Constitution as another
way of applying justice more objective, precise, dynamic, and fast,
which is in accordance with a more objective, precise, and dynamic
way of applying justice; fast, that is in accordance with a dialectic
society as the one in which we live. (Cachago, 2009).
Vásquez & Jaramillo state that:
There are more than thirty exclusive attributions for notaries, all
of them related to the functionality of public faith as a way to give
timely, fast and efficient validity to the agreements of wills in
society, thereby relieving the ordinary judicial instances that
otherwise would also have to attend to that kind of issues that are
not considered as urgent, but still necessary (2023).
In order for the public instrument to enjoy legal effectiveness, it must
have correlation between the acts witnessed by the notary with the
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constant narration within the instrument, thus the dissolution process
that concerns us, must be carried out based on the principle of
voluntariness of the parties, where each one has decided the movable
or immovable property or economic value that the interested parties
wish to receive and said property must be physically verified by the
notary responsible for carrying out or authorizing said dissolution, and
in turn accompany said process with certain documents known as
enabling documents such as certificates of municipal property,
encumbrances, certificates of not owning vehicles, etc. Once these
solemnities have been complied with, the notarial instrument itself is
drawn up, which will later have to be filed with the different
corresponding public institutions, depending on each particular case,
in order to obtain the desired legal effects.
Although it is really impossible to include all the characteristics that
make up the mediation and arbitration system in Ecuador, due to its
wide field of action as it is a type of process that goes beyond the simple
solution of a conflict, since it is a tool through which natural or legal
persons are given the possibility to solve their conflicts by their own
will, controlling all its stages until reaching a result. Hence its
etymological definition which comes from the Latin mediatio, "action
or effect of mediating" and from the word mediare which means "to
interpose oneself between two or more who quarrel or dispute, trying
to reconcile them and unite them in friendship".
Mediation can be defined as the process by which participants, with
the assistance of a natural person or persons, systematically isolate the
issues in dispute in order to find options, consider alternatives and
reach a mutual agreement that meets their needs. (Jay Folderg and
Alison Taylor, 1997)..
Considering that mediation consists of a non-adversarial procedure, in
which although there is an accredited mediator who directs the
conversation and the dialogue, it is the parties who must try to reach
an agreement, in which both parties feel benefited, that is why in
mediation there are no winners or losers. From this concept arises one
of the main characteristics of mediation such as the principle of
voluntariness, given that in the absence of the will of only one of the
parties, this may abandon the act of mediation without signing any
agreement, another of its characteristics is the informality with which
these procedures are carried out, since what it seeks is the comfort of
the parties, and that in this way arises or gives way to the creativity of
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the parties when proposing possible solutions, prioritizing the
effectiveness and procedural speed.
In the words of Rodriguez & Jaramillo (2023) state that:
Mediation arises as a need to provide a timely response to the
problems of the administration of justice and its purpose is the
solution of controversies, mentioning that when the procedural
parties go to a mediation center and it is carried out successfully,
the mediation has the effects of an enforceable judgment,
declaring the will of the intervening parties in the process
producing legal effects immediately being a viable response as a
satisfactory solution being indispensable the role of the mediator
who has the purpose of facilitating communication between the
parties to reach an agreement acting impartially and objectively
applying the principle of confidentiality, impartiality, neutrality,
impartiality and flexibility. (pp. 6-21)
Within the powers of mediation we find both in civil, transit,
commercial, criminal and family matters, however in this article we
will focus on family matters, since mediation processes can be of three
types: extraprocedural, preprocedural and intraprocedural;
extraprocedural, when the mediation process is chosen before
initiating the judicial process, preprocedural, it is a process that for a
series of different possibilities requires that it be initiated by mediation
to later pass to the knowledge of a judge, as may be the case of the
suspension of a SUPA code for extinction of obligation and finally the
mediation can be intraprocedural, when within a judicial process the
judge, through a substantiation order, orders that the mediation
process be exhausted before proceeding with the judicial process,
considering this phase as a preliminary hearing or conciliation
hearing, an act that generally occurs when a process of partition of
assets is initiated within the judicial process.
Regarding the dissolution and liquidation of the marital partnership,
it is a pre-procedural procedure, since it is used when the parties
recognize by their own will the existence of both movable and
immovable property, as well as assets and liabilities, where the
mediation center intervenes for the creation of the respective minutes,
thus avoiding the inventory process required by the courts, saving
resources and time, giving the possibility of going directly to the
distribution trial before the competent judge. In this way, the
mediation process saves approximately one year of time and a
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significant procedural economy, since it avoids an extremely long
process that consists of the intervention of experts accredited by the
Judiciary Council, for the elaboration of a global inventory of goods
and assets, which is usually very costly and takes a great amount of
time.
Article 341.- Inventory. Any person having or presuming to have a
right over the property to be inventoried shall request the judge to
draw up an inventory. For this purpose, the judge shall designate the
expert to proceed to its formation and appraisal in the presence of the
interested parties. (COGEP, 2018)
It should be emphasized that within the alternative dispute resolution
mechanisms, such mechanisms have the feasibility of working or
developing independently or jointly, especially if we refer specifically
to the notary and mediation, of which there are a number of possible
examples of affinity between the aforementioned ways, However, as
this article focuses on the family matters, specifically on the
dissolution and liquidation of the marital partnership, we will refer to
three specific cases where the notary has the power to act within a
mediation process or vice versa.
• When the notary acts as mediator in order to prevent or resolve
the parties' conflicts.
• Through the intervention of the notary or mediator to enforce
compliance or execution of agreements reached through
mediation and arbitration.
• When both the notary and the mediator work together with the
parties to resolve the conflict that has arisen.
• Vásquez & Jaramillo (2023) state that:
• The discussion of the problem of the notary's powers in
telematic notarial acts inevitably passes through the analysis of
legal certainty as the main obstacle to the relevance of the use
of technologies. This lies in the supposed need for presence as a
basic condition to verify the existence of the person and, above
all, of the right to be recognized and the voluntary nature of the
acts to which it is intended to give public faith. The problem
with this belief is that, as De Vicenzi (2022) explains, it does not
recognize that presentiality and virtuality are no longer binary
options, but that both can complement each other and be
functional, this one over the other or even in an inclusive
manner between them. (p. 6).
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This type of mechanisms, although they depend mainly on the
voluntariness of the parties, understanding that they can refuse to use
these means at any time of the process before reaching the realization
of a record of constancy, these processes do not lack confidentiality or
any formalism of those offered by judicial means, this means that the
agreement reached by the parties is binding and mandatory for the
parties, The role played by the notary or an accredited mediator is that
of a neutral third party who will help the parties to discern the subject
matter of the dispute and identify the possible solutions or agreements
that can be reached in order to avoid going to court, as mentioned
below by Blanco, 2009, when referring to the characteristics of these
two alternative ways "to be more flexible when conducting a dispute,
this being carried out in several stages that vary according to the
schools of mediation, which ascribe to different theoretical
foundations and create their own models" (p. 170). (p. 170) This will
depend very much on the will of the individuals, the degree of
preparation, the socioeconomic level and a series of other elements
that must be taken into account at the moment of conducting such a
conflict.
While many authors agree that all notaries exercise the functions of
mediator, however, Aguilar Basurto (2015) argues that "a significant
evolution of the notarial function since it prevents conflicts from
reaching judicial instances" (p. 238). Prioritizing the extra preparation
that a notary who exercises the functions of mediator must have,
especially to offer credibility and tranquility to the parties through the
power of conviction with which he has and thus put an end to the
conflicts arising through an agreement that is convenient or
satisfactory for the two or more parties, thus avoiding the unnecessary
activation of the judicial process.
In this case, the notary gives legal form to the will of the parties, while
the mediator proceeds to listen to know the situation and guide the
parties to solve the conflict, expressing in a record all the
arrangements that the parties reached. In this way, listening with
patience, sapience, conscience and humility, in an impartial way, is a
quality that defines them. (Figueroa, 2015, p. 137).
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Conclusions
Belonging to a Constitutional State of rights that seeks to approach
justice through the guarantee of respect for fundamental rights and
respect for the legal standards established in the current Constitution,
which govern the coexistence of society, we find the issue of the
dissolution and liquidation of the marital partnership as a procedural
element that has been favored with the enactment of new regulatory
bodies empowering it to be carried out through alternative means of
conflict resolution which, being faster and more accessible, are leaving
aside the traditional legal route.
Since the enactment of the Constitution of 2008, in which there was a
breakthrough in the protection of rights, there has also been a
breakthrough in terms of finding solutions to the saturated justice
system we had, since processes, regardless of the matter they were,
could stagnate for years, This is the reason for the emergence of
alternative dispute resolution mechanisms known as Alternative
Dispute Resolution Mechanisms (ADR), which include mediation,
arbitration and the notarial process, among others. (2005).
The enactment of the current Constitution grants both the notarial and
mediation channels a series of new powers, specifically within the
family sphere, given that matters such as divorce, alimony, custody,
visitation, dissolution of marital partnership, among many others, can
now be processed, which has allowed a very large respite to the current
justice system.
Despite the fact that the supreme law recognizes the validity of
alternative means of conflict resolution, the internal regulations have
a series of procedural gaps, especially in the dissolution and
liquidation of assets belonging to the marital partnership, specifically
at the time of validating the acts within the municipality; documents
that in the revenue department and in the cadastre department of the
municipality prior to liquidation request a series of additional enabling
documents, which are not requested at the time of liquidating the
assets that were awarded through the judicial process.
It is necessary to work together with the media at the national level in
order to better inform citizens about the advantages and
disadvantages of resolving social conflicts through these alternative
mechanisms, which would allow a greater use of these means and
promote the culture of peace in our daily social development.
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References
Aguilar Basurto, L. A. (2014). The notarial function: background,
nature and new trends of the notarial function [Doctoral thesis].
University of Salamanca.
Alliende Luco, L. (2011). "Métodos Alternos de Solución de Conflictos:.
In M. J. Sauceda, "Métodos Alternos de Solución de Conflictos:.
Quito: Cd. Universitaria.
Bautista Castillo (2018). Alternative Dispute Resolution Mechanisms.
In Cornelio.
González Jiménez, I. (2012). Dissolution of the conjugal partnership
in Ecuadorian legislation. Cuenca.
Jay Folderg and Alison Taylor (1997). Medios alternativos de solución
de controversias. Mexico: Limusa.
Andrade, D. (2015). "Mediation and Arbitration as Alternative
Methods of Conflict Resolution in Administrative Contracts
[Graduate Thesis]. Universidad Central del Ecuador.
Constituent Assembly of Montecristi, A. C. (2008). Constitution of the
Republic of Ecuador. Ombudsman's Office.
https://biblioteca.defensoria.gob.ec/bitstream/37000/823/1/C
onstituci%c3%b3n%20de%20la%20Rep%c3%bablica%20del%2
0Ecuador%202008.pdf
National Assembly (2023). Notarial Law. In Lexis S.A.
https://www.lexis.com.ec/biblioteca/ley-notarial
National Assembly of Ecuador (2018). General Organic Code of
Processes : COGEP. In telecommunications.gob.ec (Supplement
506).
Blanco, M. B. (2009). Mediation and alternative dispute resolution
systems: Una visión jurídica. Editorial Reus.
Cachago, J. L. (2009). The dissolution of the marital partnership and
divorce by mutual consent as a matter of exclusive knowledge
of notaries in order to decongest the civil courts. [Degree thesis].
National Congress Legislation and Codification Commission (2005).
CONGRESO NACIONAL COMISION DE LEGISLACION Y
CODIFICACION. In https://www.quito.gob.ec/ (N° 2005-10).
National Congress of Ecuador. Retrieved April 4, 2023, from
https://www.quito.gob.ec/lotaip2013/a/CodigoCivil2005.pdf
National Congress of Ecuador (2005). Arbitration and Mediation Law.
In Consejo de la Judicatura.
Figueroa, D. (2015). The impartiality of the notary: Guarantee of
contractual order. Revista de Derecho contractual mexicano, 95.
González de Cosío, F. (2004). El árbitro (1.
a
ed., Vol. 1) [Online].
Porrúa.
143
Received April 11, 2022 / Approved June 04 2023 Pages: 125-143
eISSN: 2600-5743
Centro Sur Vol. 7 No. 4 - October - December
Parraguez, L. (1986). Manual de derecho civil ecuatoriano. Víctor
Julio Mendiagaño.
Ramos, F. (2021). Over-indebtedness as a legal and social problem.
Proposal for the reform of the Code of Consumer Protection and
Defense. Desde el Sur, 13(1), e0011.
https://doi.org/10.21142/des-1301-2021-011
Rodríguez, J. J. J. R., & Jaramillo, A. A. J. (2023). The principle of
voluntariness of partial mediation acts in traffic matters.
Visionario Digital (En Línea), 7(2), 6-21.
https://doi.org/10.33262/visionariodigital.v7i2.2530.
https://doi.org/10.33262/visionariodigital.v7i2.2530.
Urrutia V., &Jaramillo, A. A. (2021). Peace culture or adversarial
culture In the Judicial District of Loja canton? Society &
Technology, 4(S2), 577-592.
https://doi.org/10.51247/st.v4is2.171
Simon, F. (2018). Manual de Derecho de familia (1.
a
ed., Vol. 1)
[Umpreso]. Cevallos Editora Jurídica.
Vásquez, C. H. V., & Jaramillo, A. (2023). The notary's attributions in
notarial acts in a telematic way. Imaginario Social, 6(1), 69-92.
http://revista-
imaginariosocial.com/index.php/es/article/view/94
