...continued 

The right to privacy and the present case 

            46.            Article 11(1) of the American Convention sets forth that every person has the right to have his or her honor and dignity recognized.  Pursuant to Article 11(2): “No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.”  Article 11(3) provides that this right is to be protected by law.  The requirements of Article 11 encompass a range of factors pertaining to the dignity of the individual, including, for example, the ability to pursue the development of one’s personality and aspirations, determine one’s identity, and define one’s personal relationships.[26]  

            47.            A principal objective of Article 11 is to protect individuals from arbitrary action by State authorities which infringes in the private sphere.[27]  Of course, where State regulation of matters within that sphere is necessary to protect the rights of others, it may not only be justified, but required.  The guarantee against arbitrariness is intended to ensure that any such regulation (or other action) comports with the norms and objectives of the Convention, and is reasonable under the circumstances.[28] 

            48.            The petitioners claim that the cited articles of the Civil Code, particularly as they restrict María Eugenia Morales de Sierra’s ability to exercise her profession and dispose of her property, constitute an arbitrary interference with her right to have her private life respected.  In the proceedings generally, the victim has indicated that the cited provisions prevent her from exercising authority over basic aspects of her day-to-day life concerning her marriage, home, children and property.  While she and her husband organize their home on the basis of mutual respect, her status in the family, community and society is conditioned by the attribution of authority to her husband to represent the marital union and their minor child.  While their jointly held property has been obtained through mutual sacrifice, the law prevents her from administering it.  Further, while her husband has never opposed her pursuit of her profession, the law authorizes him to do so at any moment.  She notes that, although there are increasing opportunities for women to more fully incorporate themselves into the processes of national life and development, married women such as herself are continuously impeded by the fact that the law does not recognize them as having legal status equivalent to that enjoyed by other citizens.

            49.            The provisions in question have been upheld as a matter of domestic law on the basis that they serve to protect the family, in particular the children.  However, no link has been shown between the conditioning of the right of married women to work on spousal approval, or the subordination of a wife’s control of jointly held property to that of her husband and the effective protection of the family or children.  In mandating these and other forms of subordination of a wife’s role, the State deprives married women of their autonomy to select and pursue options for their personal development and support.  This legislation, most specifically in the way it makes a woman’s right to work dependent on the consent of her husband, denies women the equal right to seek employment and benefit from the increased self-determination this affords.  

            50.            Whether or not the husband of the victim–in this case María Eugenia Morales de Sierra--opposes her exercise of her profession[29] is not decisive in this regard.  The analysis turns on the fact that the legislation infringes on the victim’s personal sphere in a manner which cannot be justified.  The mere fact that the husband of María Eugenia Morales de Sierra may oppose that she works, while she does not have the right to oppose this in his case, implies a discrimination.  This discrimination has consequences from the point of view of her position in Guatemalan society, and reinforces cultural habits with respect to which the Commission has commented in its Report on the Status of Women in the Americas.[30]  As a married woman, the law does not accord her the same rights or recognition as other citizens, and she cannot exercise the same freedoms they do in pursuing their aspirations.  This situation has a harmful effect on public opinion in Guatemala, and on María Eugenia Morales de Sierra’s position and status within her family, community and society. 

The obligation of the State to respect and guarantee the rights of María Eugenia Morales de Sierra without discrimination, and to adopt domestic legal measures 

            51.            As is demonstrated in the foregoing analysis, the State of Guatemala has failed to fulfill its obligations under Article 1(1) of the American Convention to “respect the rights and freedoms recognized [t]herein and to ensure to all persons subject to [its] jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of … [inter alia] sex….”  “Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention.”[31]  Article 1 imposes both negative and positive obligations on the State in pursuing the objective of guaranteeing rights which are practical and effective.  

            52.            Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 have a continuous and direct effect on the victim in this case, in contravening her right to equal protection and to be free from discrimination, in failing to provide protections to ensure that her rights and responsibilities in marriage are equal to and balanced with those of her spouse, and in failing to uphold her right to respect for her dignity and private life. A person who enjoys the equal protection of and recognition before the law  is empowered to act to ensure other rights in the face of public or private acts.  Conversely, gender-discrimination operates to impair or nullify the ability of women to freely and fully exercise their rights, and gives rise to an array of consequences.[32]  The inter-American system has recognized, for example, that gender violence is “a manifestation of the historically unequal power relations between women and men.”[33] “Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse….”[34]  De jure or de facto economic subordination, in turn, “forces many women to stay in violent relationships.”[35] 

            53.            Recognizing that the defense and protection of human rights necessarily rests first and foremost with the domestic system, Article 2 of the Convention provides that States Parties shall adopt the legislative and other measures necessary to give effect to any right or freedom not already ensured as a matter of domestic law and practice.  In the instant case, the State has failed to take the legislative action necessary to modify, repeal or definitively leave without effect Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 which discriminate against the victim and other married women in violation of Articles 24, 17 and 11 of the American Convention.  When the articles at issue were challenged as unconstitutional, the State, acting through its Court of Constitutionality, failed to respond in conformity with the norms of the American Convention.[36]  Although relevant national and international authorities have identified these articles as incompatible with the State’s obligations under national and international law, they remain the law of the land.[37]  

            54.            The obligation to respect and ensure the rights of the Convention requires the adoption of all the means necessary to assure María Eugenia Morales de Sierra the enjoyment of rights which are effective.  The failure of the State to honor the obligations set forth in Articles 1 and 2 of the Convention generates liability, pursuant to the principles of international responsibility, for all acts, public and private, committed pursuant to the discrimination effectuated against the victim in violation of the rights recognized in the American Convention and other applicable treaties.  Pursuant to those same principles, the State of Guatemala is obliged to repair the consequences of the violations established, including through measures to restore the rights of María Eugenia Morales de Sierra to the full extent possible, and to provide a just indemnity for the harm she has sustained.  Measures of reparation are meant to provide a victim with an effective remedy, with the essential objective of providing full restitution for the injury suffered.[38] 

V.             ACTIONS SUBSEQUENT TO REPORT Nº 86/98 

55.            Pursuant to the terms of Article 50 of the Convention, the Commission adopted Report Nº 86/98 on October 1, 1998.  That Report set forth the Commission’s analysis (contained in sections I – V, supra) and finding that the State of Guatemala was responsible for having violated the rights of María Eugenia Morales de Sierra to equal protection, respect for family life, and respect for private life established in Articles 24, 17 and 11 of the American Convention on Human Rights.  The Commission accordingly found the State responsible for having failed to uphold its Article 1 obligation to respect and ensure those rights under the Convention, as well as its Article 2 obligation to adopt the legislative and other measures necessary to give effect to those rights of the victim.  Further, the Commission indicated that the conduct at issue also constituted violations of the obligations set forth in the Convention on the Elimination of All Forms of Discrimination against Women, most specifically, in Articles 15 and 16.  Consequently, the Commission recommended (1) that the State take the legislative and other measures necessary to amend, repeal or definitively leave without effect Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 of the Civil Code so as to bring national law into conformity with the norms of the American Convention and give full effect to the rights and freedoms guaranteed to María Eugenia Morales de Sierra therein; and, (2) that it redress and adequately compensate María Eugenia Morales de Sierra for the violations established. 

            56.            The Report was transmitted to the State of Guatemala on November 6, 1998.  Pursuant to the terms set forth, the State was given two months from the date of that transmission to comply with the recommendations issued and report to the Commission on the measures taken for that purpose.  By a note of the same date, the Commission informed the petitioners that a report on the case had been adopted pursuant to the terms of Article 50 and transmitted to the State.  On November 24, 1998, the Commission transmitted a communication to the State attaching a fe de errata to correct a drafting error in one paragraph of that Report. 

            57.            The State transmitted its response to Report 86/98 by note dated December 7, 1998.  In that response, the State emphasized its acceptance of the need to address certain norms in the Civil Code that were out of date and discriminatory toward married women.  However, it reiterated its position that the victim had not been personally prejudiced by the challenged norms, as her family life and professional career had not been harmed.  In line with its recognition of the need to reform the provisions as a general matter, the State informed the Commission that the Congress had on November 19, 1998 approved Decree Number 80-98, enacting reforms to the Civil Code.  The attached text reflected reforms to Articles 109, 110, 115, 131 and 255, and the derogation of Articles 114 and 133.  The State further informed the Commission that the reforms would enter into force pursuant to their sanction, promulgation and publication.   

            58.            On December 28, 1998, the Commission addressed the State to request that it supply information as soon as possible on the time required to accomplish the actions necessary for the reforms to enter into force.  By a note of January 12, 1999, the State reported that the text of Decree 80-98 had been published in the Diario de Centro América on December 23, 1998.  The modifications had entered into force eight days after publication.  The State indicated that it considered that it had fully complied with the recommendations issued by the Commission in Report 86/98. 

            59.            Having analyzed the reforms indicated, and having noted that they addressed seven of the nine provisions challenged by the petitioner, the Commission addressed the State on January 25, 1999, to request information as to any measures taken with respect to Articles 113 and 317, which were not addressed in Decree 80-98, and to ask for additional information about the language of Article 131 as published, which appeared to be inconsistent with the explanation of the reform.[39]  In view of the fact that the three month period provided in Article 51 was set to expire on February 6, 1999, the Commission requested a response within 7 days, and indicated that a request for an extension could only be considered if accompanied by an express manifestation by the State that this would suspend that time period. 

            60.            By a note of that same date, the Commission transmitted a copy of the text of Decree 80-98 to the petitioners with a request for observations as to whether the reforms set forth satisfied in whole or in part the claims presented.  A response was requested within 7 days. 

            61.            On January 25, 1999, the petitioners submitted a request that the Commission schedule a hearing on this matter during its next period of sessions.  The Commission acknowledged receipt on January 29, and requested information as to the proposed purpose of such a hearing. 

            62.            On February 1, 1999, the petitioners presented a communication setting forth their view as to why the reforms did not completely resolve the discrimination denounced or fully repair the violations suffered by the victim. 

            63.            On February 4, 1999, the State presented information indicating that no measures had been taken with respect to Articles 113 and 317, and reiterating the reforms reported with respect to Article 131. 

            64.            By a note of February 5, 1999, the State requested an extension of 60 days to present additional information concerning the case, with the express understanding that this would suspend the three-month time period provided in Article 51 of the Convention.  That request was accepted, subject to that understanding, by a note of the same date, which indicated that the extension would expire on April 7, 1999. 

            65.            By a note of that same date, the Commission informed the parties that it had granted a hearing concerning the case, scheduled for March 5, 1999.  On February 17, 1999, the parties were informed that the date had been changed to March 4, 1999.   

            66.            During that hearing the petitioners expressed their view that the State had yet to recognize a violation in the particular case, had made no measures of reparation, and had not addressed Articles 113 and 317, which formed an important part of their complaint.  They also pointed out that the reformed text of Article 131 was unclear.  Further, they indicated that what was required with respect to Articles 109 and 131 was that decisions on the representation of the marital union and marital property be taken jointly, rather than jointly or separately as the reforms provide. 

            67.            The State, for its part, presented arguments as to why it considered that Article 317 did not require reform.  Its position was that the Article permits women to request to be excused from exercising certain forms of custody; accordingly, it provides a privilege that can be invoked by choice and imposes no discrimination.  The State indicated that a draft reform to derogate Article 113 had been elaborated in February, but that additional time would be required to work toward its adoption.  With respect to Article 131, the State indicated that there had been a mistake in the transmission of the text when published, and that this would be corrected.  The State indicated that it wished to have an additional extension of one year to accomplish the measures indicated, with the understanding that this suspended the period referred to in Article 51 of the Convention.   

            68.            On March 10 and 11, 1999, the petitioners submitted communications as to why they considered that an additional extension should not be granted.  They indicated that the State had indicated no intention to derogate Article 317, or to amend Articles 109 or 131 to require joint decision making, and that there were no guarantees that Article 113 would in fact be derogated. 

            69.            Pursuant to that hearing, by note of March 24, 1999, the State requested an additional one-year extension, again, with the express understanding that this interrupted the running of the three-month time period provided in Article 51.  That communication was transmitted to the petitioners for their information on March 31, 1999.  In the interim, on March 29, 1999, the petitioners had submitted an additional communication on these points, asking that the case be placed before the Inter-American Court of Human Rights without delay, or, if an extension were granted, that it be limited to three months.  

            70.            On April 7, 1999, the Commission granted the requested extension of one year, with the understanding that this suspended the period referred to in Article 51, and under the condition that the State present significant advances toward full compliance with the recommendations in meetings to be convoked by the Commission during its next two periods of sessions.   

            71.            By notes of April 7 and 8, 1999, the Commission convened the parties for a working meeting on May 7, 1999, during its 103 period of sessions, to discuss the status of the recommendations issued in Report 86/98 and the measures of compliance that remained pending, particularly those concerning Articles 113, 131 and 317.  By means of a note of April 15, 1999, the Commission informed the petitioners of the extension and the express conditions under which it had been granted. 

            72.            As a follow-up to the May 7, 1999 meeting, the Commission addressed the State on August 23, 1999, with a request that it supply information within 30 days on the measures adopted to effectuate the recommendations issued in Report 86/98.  On August 31, 1999, the Commission convened the parties for a hearing to be held on October 5, 1999, during its 104º period of sessions. 

            73.            On September 2, 1999, the State informed the Commission that it had complied with the recommendations issued in Report 86/98 through the adoption of Decree 29-99, reforming Article 131 and derogating Article 113.  A copy of the decree was attached, with the information that it had entered into force as of the date of the letter.  Given this compliance, the State asked that the case be archived.  This information was transmitted to the petitioners on September 13, 1999, with observations in response requested within 21 days. 

            74.            In the course of the October 5, 1999 hearing, the petitioners presented a communication requesting that, in view of the reform of Article 131 and derogation of Article 113, the Commission issue a final report setting forth the partial compliance of the State.  The petitioners congratulated the State for having reformed the majority of the discriminatory provisions challenged in the case, recognizing in particular the derogation of Articles 113 and 114, and reform to Article 110, establishing that spouses have an equal responsibility to care for the children and home.  The petitioners asked that the final report expressly indicate the State’s failure to derogate the challenged provision of Article 317.  Further, they asked that it reflect that, by allowing either spouse to exercise authority autonomously, the reforms to Articles 109, 115, 131 and 255 do not guarantee María Eugenia Morales de Sierra effective participation in decision making.  They maintain that this may only be done by requiring joint consent in such decisions. 

            75.            The State, for its part, reiterated the importance it attaches to having carried out the reforms in question.  It also reiterated its view that Article 317 constitutes a privilege, a special consideration which may be invoked, rather than a form of discrimination which is imposed.  The State indicated that it would submit the legislative history of the Article as well as opinions on the question by the Attorney General and President of the Congressional Commission of Women and the Family in support of its position.  The petitioner’s communication was formally transmitted to the State on October 13, 1999, with a request that any further information on the case be submitted within 30 days. 

            76.            On December 17, 1999, the State submitted a response indicating its view that the reforms adopted had accomplished what was required, and reiterating its views with respect to Article 317.  This information was transmitted to the petitioners on December 21, 1999, with any observations requested within 30 days. 

            77.            The above proceedings having been carried out, and certain articles having been reformed pursuant to Decrees 80-98 and 27-99, the Commission wishes to briefly summarize the status of the legislation at issue in the present case.  Articles 113, 114 and 133 have been derogated.  Article 109 has been reformed to provide that representation of the marital union corresponds equally to both spouses, who shall have equal authority in the home and decide jointly on household and family matters.  In the case of disagreement, a family court judge will decide who prevails.[40]  Article 110 maintains its original heading, “protection of the wife,” and first paragraph, stipulating that the husband owes certain duties of protection and assistance to the wife.[41]  It has been modified with respect to its second paragraph to reflect that both spouses have the duty to care for minor children.[42]  Article 115 has been modified to provide that in case of a disagreement between spouses as to representation of the marital union, a family judge will decide to whom it shall correspond on the basis of the conduct of each.[43]  Article 131 has been amended to read that both spouses may administer marital properly, either jointly or separately.[44]  Article 255 has been modified to provide that both spouses shall represent children and administer their property, either jointly or separately.[45]  Article 317, which allows certain classes of persons to be excused from exercising certain types of custody remains in its original form.[46] 

            78.            The Commission fully recognizes and values the reforms enacted by the State of Guatemala in response to the recommendations set forth in Report 86/98.  As the parties have recognized, these constitute a significant advance in the protection of the fundamental rights of the victim and of women in Guatemala.  The reforms represent a substantial measure of compliance with the Commission’s recommendations, and are consistent with the State’s obligations as a Party to the American Convention.  

79.              The Commission is not, however, in a position to conclude that the State has fully complied with the recommendations. The original heading and first paragraph of Article 110, which remain in force, refer to the duty of the husband to protect and assist his wife within the marriage, a duty that, in and of itself, is consistent with the nature of the marital relationship.   For its part, Article  111 of the  Code establishes  the obligation  of the wife to contribute equitably to maintenance of the home to the extent that she can,[47] a duty that is also consistent with the relationship between spouses.  While neither of these duties gives rise, in itself, to a situation of incompatibility, they continue to reflect an imbalance in that the legislation recognizes that the wife is the beneficiary of the husband’s duty to protect and assist her, while the law does not impose the same duty on her with regard to her husband.  Article 17(4) of the American Convention requires the State to “ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage 

80.              With regard to Article 317, the decisive factor is not whether it is viewed as referring to a privilege or an obligation; what is dispositive is the nature of the distinction made in the provision and the justification offered for it.  Essentially, the terms of Article 317 identify categories of persons who may be excused from custody or guardianship due to limitations, for example, economic or health reasons.  It is not evident, nor has the State explained what limitation justifies including “women” in these categories.  According to Article 17 of the American Convention, and as expressly stipulated in Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women, States Parties must guarantee equal rights and duties with regard to exercising custody and other forms of guardianship of children. 

81.              In this sense, both Article 317 and the title and first paragraph of Article 110 suggest, expressly or implicitly, that women are characterized by inherent weaknesses that limit their capacity as compared to men.  This affects María Eugenia Morales de Sierra in her right to equal protection of the law, in accordance with Article 24 of the American Convention, and to respect for her human dignity, pursuant to Article 11 of that Convention.  Additionally, as stated in paragraph 44 above, these norms apply stereotyped notions about gender roles, thereby perpetuating de facto discrimination against women in the family sphere.  Further, with regard to the question of compliance with the recommendations, the State has provided no measures of reparation to the victim in response to the findings and recommendations of the Commission. 

82.              The petitioners have responded to the modification of Articles 109, 115, 131 and 255 by contending that the Convention requires that the decisions at issue be taken by both spouses jointly, rather than autonomously as the reforms permit.  Because this position was not developed in the proceedings prior to Report 86/98, and because it has not been sufficiently sustained subsequently in relation to the facts of the particular case and the experience of the victim, or the normative content or jurisprudence of the system, the Commission finds that the question has not been sufficiently defined in the case, and cannot conclude that the reforms fail to satisfy the recommendations for this reason.   

VI.                CONCLUSIONS 

            83.            On the basis of the foregoing analysis and conclusions, the Commission finds that the recommendations issued in Report 86/98 have been complied with in important measure.  It reiterates its conclusion that the State of Guatemala has not discharged its responsibility for having violated the rights of María Eugenia Morales de Sierra to equal protection, respect for family life, and respect for private life established in Articles 24, 17, and 11 of the American Convention on Human Rights in relation to the heading and paragraph one of Article 110 and paragraph four of Article 317.  The Commission accordingly finds the State responsible for having failed to uphold its Article 1 obligation to respect and ensure those rights under the Convention, as well as its Article 2 obligation to adopt the legislative and other measures necessary to give effect to those rights of the victim.  

VII.            RECOMMENDATIONS 

            84.            On the basis of the analysis and conclusions set forth in the present report, 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, 

DECIDES: 

            To reiterate its recommendations to the State of Guatemala that it: 

1.                  Adapt the pertinent provisions of the Civil Code to balance the legal recognition of the reciprocal duties of women and men in marriage and take the legislative and other measures necessary to amend Article 317 of the Civil Code so as to bring national law into conformity with the norms of the American Convention and give full effect to the rights and freedoms guaranteed to María Eugenia Morales de Sierra therein. 

2.                  Redress and adequately compensate María Eugenia Morales de Sierra for the harm done by the violations established in this Report. 

VIII.            PUBLICATION 

            85.            On November 7, 2000, the Commission transmitted Report No. 92/00–the text of which is reproduced above–to the State of Guatemala and to the petitioners, pursuant to Article 51(2) of the American Convention, and granted the State one month to comply with the foregoing recommendations.  In accordance with the aforementioned Article 51(2), at this stage in the proceedings the Commission shall restrict itself evaluating the measures taken by the Guatemalan State to comply with the recommendations and remedy the situation examined.  The Guatemalan State did not submit observations on Report 92/00. 

            86.            In view of the foregoing considerations and the provisions of Article 51(3) of the American Convention and Article 48 of the Regulations of the Commission, the Commission decides to reiterate the conclusions and recommendations contained, respectively, in Chapters VI and VII supra; to publish this report; and to include it in its Annual Report to the General Assembly of the OAS.  Pursuant to the provisions contained in the instruments governing its mandate, the IACHR will continue to evaluate the measures taken by the State of Guatemala with respect to those recommendations, until the State has fully complied with them. 

Approved by the Inter-American Commission on Human Rights on January 19, 2001.  (Signed): Hélio Bicudo, Chairman; Claudio Grossman, _First Vice-Chairman; Juan E. Méndez, Second Vice-Chairman; and Commissioners Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.


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[26] See, inter alia, Eur. Ct. H.R., Gaskin v. United Kingdom, Ser. A No. 160 (addressing interest of applicant in accessing records concerning childhood and early development); Niemetz v. Germany, Ser. A No. 251-B, para. 29 (noting that respect for private life includes right to “establish and develop relationships,” both personal and professional.)

[27] See generally, Eur. Ct. H.R., Kroon v. The Netherlands, Ser. A No. 297-C, para. 31 (1994).

[28] See U.N.H.R. Committee, Toonan v. Australia, Comm. No. 488/1992, para. 8.3, citing, General  Comment 16[32] on Article 17 [of the ICCPR], Doc. CCPR/C/21/Rev.1 (19 May 1989).

[29] As noted above, in the present case the victim’s husband has not opposed the exercise of her profession.

[30] Published in, Report of the IACHR 1997, OEA/Ser.L/V/II.98 doc. 7 rev., 13 April 1998.

[31] Velásquez Rodríguez Case, para. 164; Godínez Cruz Case, para. 173.

[32] See generally, Report on the Status of Women, supra, at p. 1018-1020.

[33] See, Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará), preamble, Art. 7.e [ratified by Guatemala April 4, 1995].

[34] CEDAW, General Recom. 19, “Violence against women,” U.N. Doc. HRI\GEN\1\Rev.1, p. 84, at para. 11 (1994); see generally, Convention of Belém do Pará, Art. 6(b).

[35] General Recom. 19, supra, para. 23.

[36] See, Report Nº 43/96, Case 11.430, Mexico, OEA/Ser.L/V/II.95, Doc. 7 rev., Mar. 14, 1997, para. 102.

[37] See Report 28/98, supra, paras. 6, 7 23 (recording position of State itself that articles in question were not in conformity with national and international obligations); CEDAW, Thirteenth Sess., A/49/38, Sessional/Annual Rpt [consid. of report on Guatemala], paras. 44, 48, 70-71, 78-79, 81 (expressing Committee’s concern with respect to “highly discriminatory provisions” of Code restricting or violating fundamental rights.)

[38] Velásquez Rodríguez Case, Interpretation of the Compensatory Damages Judgment, Judgment of August 17, 1990, Series C No. 9, para. 27.

[39] According to Article 5 of Decree 80-98, “Article 131, paragraph 2 is amended to read as follows:  ‘Under the system of absolute joint ownership [comunidad absoluta] by husband and wife or that of community of property acquired during the marriage [comunidad de gananciales], both spouses shall administer the marital property, either jointly or separately.’”

[40] According to Article 1 of Decree 80-98, “Article 109 is amended to read as follows:

Article 109.  Marital representation.  Representation of the marital union shall correspond equally to both spouses, who shall have equal authority and considerations in the home; they shall establish their place of residence by common agreement, and shall arrange everything concerning the education and establishment of their children, as well as the family budget.

In the event of disagreement between the spouses, a family court judge shall decide who prevails.”

[41].The non-amended part states: “Article 110. (Protection of the wife). The husband must provide protection and assistance to his wife and is obliged to supply everything needed to sustain the home in accordance with his economic means.”

[42] According to Article 2 of Decree 80-98, Article 110, paragraph 2 is amended to read as follows:  “Both spouses shall have the obligation to attend to and care for their children while they are minors.”

[43] According to Article 4 of Decree 80-98:

Article 115.  In the event of disagreement between the spouses with regard to representation of the marital union, a family court judge will decide to whom it shall correspond on the basis of the conduct of each both inside and outside the home.  The judge shall also indicate how long that spouse will exercise representation and the conditions that the other spouse must fulfill to recover the chance to represent the union once again.

In any event, administration shall be exercised individually, without the need for a court order to that effect, in the following cases:

1.                    If one of the spouses is prohibited from exercising administration by court order;

2.                    Voluntary abandonment of the home or declaration of absence; and

3.                   Pursuant to a sentence of imprisonment, and for its full duration.

[44].According to Article 1 of Decree 27-99:

Article 131. Under the system of absolute joint ownership [comunidad absoluta] by husband and wife or community of property acquired during marriage [comunidad de gananciales], both spouses shall administer the marital property, either jointly or separately.

Each spouse or common-law spouse shall dispose freely of goods registered under his or her name in the public registries, without prejudice to the obligation to account to the other for any disposal of common property.

[45] According to Article 8 of Decree 80-98:

Article 255. For the duration of the marital union or common-law marriage, the father and mother shall jointly exercise parental authority.  Both parents shall also, jointly or separately, represent and administer the property of minor or incompetent children, except in cases governed by Article 115, or in cases of separation or divorce, in which representation and administration shall be exercised by the spouse who has custody of the minor or incompetent child.

[46] See notes 3-11, supra.

[47] Article 111 of the Civil Code.  (Obligation of the wife to contribute to maintenance of the household).  The wife shall also contribute equitably to maintenance of the household if she has property of her own or performs a job, profession, trade, or business; however, if the husband is unable to work and has no property of his own, the wife shall cover all the expenses out of her income.