El juez César Hernán Ferreyra, titular del Juzgado de Primera Instancia en lo Civil, Comercial y Laboral de Monte Caseros, Corrientes, decretó el divorcio de una pareja con aplicación del nuevo Código Civil y Comercial en una causa que se había iniciado con anterioridad a la entrada en vigencia del nuevo cuerpo normativo.
En el caso, una mujer había presentado una demanda de divorcio en abril de 2013, invocando las causales de separación de hecho sin voluntad de unirse por más de tres años y adulterio, que estaban previstas en el Código anterior. Según la resolución, quien fuera su cónyuge no había contestado la demanda, declarándosele en rebeldía. Tampoco el demandado había producido prueba. Más de dos años después, en julio de 2015, se dispuso el llamado de autos para sentencia.
En el fallo, firmado el pasado 3 de agosto, la jueza señaló que el 1° de ese mes había entrado en vigencia el Código Civil y Comercial de la Nación, sancionado por la ley 26.994, y que en el caso la mujer había expresado su voluntad de disolver el vínculo matrimonial que lo unía con el demandado, invocando la causal objetiva de separación de hecho y la causal subjetiva de adulterio que le imputaba a quien fuera su esposo.
Para el magistrado, “en este caso, la actora –en su demanda- solicita se decrete su divorcio vincular. Y eso basta para tornar precedente el divorcio pretendido”. Es que en el nuevo Código se establece que el divorcio se decreta judicialmente a petición de ambos o de uno solo de los cónyuges, y nada dice sobre la obligación de invocar alguna causa.
“No corresponde expedirse en esta sentencia sobre la configuración o no, tanto de la causal objetiva como de la subjetiva de adulterio invocada por la actora en su escrito de demanda. Sobre lo último se puede agregar que al momento de dictar la presente sentencia ya no rige el CC –Código Civil- y, por ende, el art. 235 del mismo que así lo exigía, sino el CCC –Código Civil y Comercial- de aplicación inmediata”, agrega.
Aplicación del nuevo Código
En la resolución, el juez señala que conforme al artículo 7° del Código Civil y Comercial el nuevo cuerpo normativo se aplica a partir de su entrada en vigencia a las consecuencias de las relaciones y situaciones jurídicas existentes. “En nuestro caso la situación jurídica que involucra a las partes es el matrimonio, debiendo decidir en esta sentencia sobre su extinción, lo que debe hacerse con base en la ley vigente al momento de dictarla, es decir, el nuevo CCC –Código Civil y Comercial-”, indica.
“El nuevo CCC se aplica inmediatamente a las consecuencias de las relaciones jurídicas existentes; el matrimonio entre las partes de este proceso es una situación jurídica existente al momento de entrada en vigencia del CCC, pero no así su extinción, que operará con el dictado de la presente sentencia bajo la vigencia del nuevo ordenamiento; de allí que la sentencia, dictada vigente el nuevo CCC, no deba contener atribución de culpas –ni análisis de los hechos (causales) en los que se la funda– pues el ordenamiento vigente no lo permite, además de quitarle toda relevancia y virtualidad de efectos. Lo mismo respecto del plazo de separación de hecho exigido por el derogado CC”, añade.
Fuente: C.I.J. (Centro de Información Judicial)
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