VII.- BURDEN OF PROOF (ONUS PROBANDI) AND GENDER-BASED VIOLENCE[Name1] In the prohibition of discrimination and gender-based violence, the question of its proof occupies a strategic place, especially if one takes into account that, in general terms, we are in the presence of socially illegitimate behaviors that are invisibilized and naturalized and that the person who engages in them usually takes a series of precautions to leave no evidence of their occurrence or, simply, to distort them and diminish their significance. Hence, in order to sanction and eradicate them, it is necessary to confront, in particular, the concealment strategies of their perpetrator, which cannot be placed upon the victim because that would mean perpetuating the violation of her fundamental rights. For this reason, specialized doctrine and States have developed a series of rules and principles related to the burden of proof (onus probandi)[Name1] that starts from the evident social inequality between the parties that mediates in such cases. In the European Union sphere, for instance, Directives 2000/43/EC and 2000/78/EC establish that, in civil matters, the person who considers herself a victim of discrimination must only prove those facts that allow its existence to be presumed, while the defendant is responsible for demonstrating that they have not infringed the principle of equal treatment. In our opinion, these rules are applicable in matters such as this one, not only because they can be considered a development of what is provided for in numeral 317 of the Civil Procedure Code (Código Procesal Civil)[Name1] but also because a correct exegesis of the international regulations applicable in Costa Rica so demands. Consequently, and dealing, as is indeed the case, with the most severe violation of human rights recorded in the country, one must start from the presumption of the truthfulness of the complaint and apply the redistribution of the burden of proof here. To redistribute is to attribute in a diverse way and to place the weight of the proof differently from the traditional manner, considering the disparity in which those who make up a couple relationship find themselves when a dynamic of violence to the detriment of one of its members is present. The social position of inferiority of the victim is notorious and, for that reason, one must seek to correct that imbalance by attributing a greater evidentiary burden to the aggressor. As a consequence of this, the transfer of the complaint translates into a warning that its content will be taken as true if the sued party does not answer it, and, if no specific response is given to each of its points, that lack of express contradiction implies a tacit acknowledgment on their part. The person who sues is only responsible for the burden of proving the existence of the relationship and some circumstantial element of the violence attributed, without this implying, of course, an impediment or absolute exoneration from demonstrating, in a complementary manner, the diverse facts that she affirms. The defendant is responsible for discrediting the credibility or the account of the plaintiff, and, in case of doubt, one must opt for what is most favorable to the victim's thesis. As the Third Chamber has rightly pointed out, in a subject as restrictive as criminal law, [Name1] domestic violence (violencia intrafamiliar) is a problem of the highest order in our country, which constitutes a great challenge for the jurisdictional work that intervenes in said problem. This means nothing more than that each episode must be assessed in light of the rules of experience and psychology, which in this field have special rules, which have been built thanks to studies and the contribution of victims and people who have dedicated themselves to addressing this problem. What has been said means that there must be a special reading of the events, which is precisely that which derives from the very context in which it is produced, namely, domestic violence, relations of power and domination, the socio-cultural component that exists behind each episode and that allows the visualization of a pattern of control, of domination –which contributes to understanding and assessing the aggressor's conduct– and a role of receiver of the aggression –which contributes to understanding and assessing the conduct of the victims–. Undoubtedly, behind each event of aggression there are social, cultural, and political factors that are present and that must be visualized and taken into consideration by the judges. With that said [Name1] the need is noted to take into account (sic) the specific situation of violence and to see beyond, to look for the background of the facts, what their antecedents are, what type of relationship exists and preceded the event being analyzed, how the power relations between those involved have manifested themselves, and how all these factors are useful for correctly judging the case, as a product of a context determined by the actors themselves and the relationship that mediates between them. Of course, an episode of domestic aggression cannot be assessed with the same criteria as those of a street brawl, occurring between strangers or unknown persons, and this is what the Chamber [and this Tribunal] wants to highlight, regarding the claim under review.” (Voto n.º 2003-982, of 10:05 hours on October 31, 2003).-
VIII.- ANALYSIS OF THE EVIDENCE I: THE FACTUAL BASIS OF THE COMPLAINT AGAINST MR. [Name4]. With the certifications issued by the Civil Registry (Registro Civil), duly incorporated into the process, it is proven that Mrs. [Name2]. and Mr. [Name4]. have been united in marriage since September 10, 1976 (folio 6) and that during their union they procreated B.G., M.J., C., C.M., and S., all these persons with the surnames S.R. and over eighteen years of age (folios 1, 2, 3, 4, and 5). The certifications issued by the National Registry (Registro Nacional) demonstrate that the defendant is the owner of the vehicle with plates [Placa4], acquired for valuable consideration in January 2000 (folios 7-8) and of the property in the district of Alajuela, real estate registration number xxx, acquired by purchase in March 1992 (folios 11-12). Since they entered his estate during the validity of the marriage, for valuable consideration, both must be considered community property (bienes gananciales). In her complaint, Mrs. [Name2]. stated: “5.- if (sic) it is true that for many years I have been the object of VERBAL ABUSE (SEVICIA VERBAL) by the defendant, the same (sic) has been exacerbated (sic) more (sic) from three years ago to here (sic) (TAKING AS THE LAST (sic) DIRECT AND PERSONAL WHEN I HAD TO LEAVE THE HOME IN MARCH (sic) 2004) [Name1] Such (sic) it is that he told me that the undersigned had a lover and that he knew it (sic), every time you go out (sic) they are screwing you, that even our daughters were the same as me that they were W… and that if I had any shame I would leave (sic) the house, that the only thing I did was squeeze him dry and that I did nothing in the house.- That if I had any shame I would leave there THAT WAS ON MARCH 14, 2004 for which I had to resort to the judicial authority to authorize my departure from the home, which was effectively granted to me [Name1] That he continues (sic) saying that about my person to third parties who know me and know the type of person I am, for which I continue (sic) being a person subject to VERBAL ABUSE if no longer directly BUT THAT HE DOES IT WITH OTHER PEOPLE WHO TELL ME AND THAT OBVIOUSLY AFFECTS ME GREATLY to the point that I decided to opt for making the present proceedings, I GAVE ALL A TIME WAITING FOR A SUBSTANTIAL CHANGE FROM THE DEFENDANT FOR A BETTER UNDERSTANDING AND IF THAT IS NOT SO NOR DOES IT HAPPEN SO THEN HENCE IT IS APPROPRIATE THAT WE DIVORCE AND THAT EACH ONE MAKES THEIR OWN LIFE.- [Name1] the defendant knows which people I am referring to and with whom he has done the above BUT THAT SINCE THEY KNOW US BOTH AND APPRECIATE US BOTH we know they would not come to declare it before the corresponding judicial authority BUT YOU KNOW THAT YOU HAVE DONE IT AND YOU CONTINUE TO DO SO hence it is for this reason that divorce is best for the legal and consequent purposes.” (Folios 23-24). In response to those accusations, the defendant simply stated the following: “It is not true. My client has never (sic) made comments of that type to M., much less to any of his daughters. While it is true that on the day she asked him for a divorce he (sic) replied that she should do whatever she wanted. My client recognizes that he has a strong character and that he gets angry easily but that he has never offended them in the way the plaintiff indicates. He says that she is very exaggerated. [Name1] Contrary to what the plaintiff mentions, my client wishes to state that it was rather (sic) the plaintiff who capriciously abandoned the home causing a great family upheaval.” (Folios 97-98). For this Tribunal, it is obvious that, even though he denies having used the words she mentions, Mr. [Name4]. does tacitly recognize having resorted to inappropriate words to refer to his wife. It also calls attention that he attributes his behavior to his strong character and the ease with which he gets angry, that he accuses her of being exaggerated, and that he blames her for having caused a serious family upheaval by having sought her protection, thereby minimizing his conduct and it is easily deducible that he does not pay much attention to the expectations, needs, and desires of the person who has been his partner for approximately thirty years. Those circumstances, together with what was noted regarding the burden of proof, make what is related in the complaint plausible. The deposition of Mrs. [Name11]., whose husband was a cousin of Mr. [Name4]., confirms that what is attributed to the latter is true. That witness stated the following: \"What I know is that I hold them both in esteem. They always lived fighting and they got along badly, he always drank a lot of liquor and would come to aggress her, he said very rude things to her verbally, it is evident to me as I heard him when he said very ugly things to her. They have been separated for about four years more or less. The problem of the separation was because of the same aggressions, she suffered a lot and the moment came when she could not take any more. I cannot attest to physical aggressions, but with words he told her she was a prostitute, a slut (sorra), a bad mother and from what I know of her she is a very brave and responsible person, she was always dedicated to the home, to him and worked a lot in her house and the farm, she saved money for him, lived humbly since he never had money for her or for his children.” (The quote is verbatim. Folio 269). From the record of the taking of evidence, it is clear that the deponent was spontaneous, was forceful in her assertions and gave an effective account of diverse and undue aggressions of which Mrs. [Name2]. was a victim in her relationship with Mr. [Name4]. There is no doubt, then, that he subjected her to constant and systematic psychological aggression, to the point that she was forced to go before the judicial authority to request authorization to leave her matrimonial domicile and that this protective measure was granted to her. The lexicon used by Mr. [Name4]. to refer to his wife, Mrs. [Name2]. qualifies as grotesque and denigrating. The transcribed testimony allows one to appreciate, in addition, the spiral of violence in which she was trapped. Obviously, these are not isolated events but a systematic practice that has no justification whatsoever. We do not doubt that the defendant turned his couple relationship into a space for abuse and violence, managing it for his convenience. For all of these reasons, it must be taken as duly demonstrated that Mrs. [Name2]. was subjected by her spouse to constant and systematic gender-based violence. And, contrary to what the a quo[Name1] judge affirms, these elements are sufficient to consider the factual foundations of the filed complaint as established. As the Third Chamber has repeatedly pointed out, “Nothing prevents, in a system of free assessment of evidence, the Court from basing its conviction on the deposition of a single witness; in this regard, this Chamber has pronounced itself, indicating that: ‘Regarding the first point, it must be noted that our procedural system does not follow a system of legal or appraised evidence without which it is impossible to adopt a decision. From this perspective, even a single testimony is sufficient to sustain a conviction, provided it is assessed in accordance with the rules of sound judgment. Therefore, the reproaches that other proofs were not carried out (which, if they existed, would apparently allow the complainant to agree with what was decided) cannot prosper, but rather one must examine whether those that were conducted can serve as a foundation for the ruling, in a reasonable and logical manner.’ (see Voto 469-2002 of 9:20 hours on May 24, 2002, of the Third Chamber of the Supreme Court of Justice).” (Voto n.º 2003-503, of 9:35 hours on June 20, 2003. In a similar sense, Voto n.º 2003-92, of 10:15 hours on February 14, 2003, pronounces itself). This being the case, it is important to highlight the full validity and evidentiary efficacy of the account of Mrs. [Name11]., whose eloquence makes any additional comment unnecessary.-
IX.- CRUEL TREATMENT AS GROUNDS FOR DIVORCE. As the basis of her complaint, the plaintiff alleged the grounds of cruel treatment (sevicia), provided for in subsection four of Article 48 of the Family Code (Código de Familia)[Name1] This makes it necessary to qualify the proven facts, for which it is essential to define, first, the scope of that indeterminate legal concept. Both in doctrine [see, above all, [Name16], [Name17] (1982). Derecho de Familia costarricense[Name1] San José: Editorial Juricentro, S. A., pp. 271-273] and in national jurisprudence [see, among others, the votes of the Second Chamber N.os 131, of 9:30 hours on June 27; 143, of 16:10 hours on July 4; 213, of 10:00 hours on September 24, all three from 1997; 2001-119, of 9:00 hours on February 16, 2001; 2005-324, of 9:08 hours on May 11, 2005; [Phone2], of 9:50 hours on December 22, 2006 and 2007-769, of 9:05 hours on October 12, 2007] it is common to find references to the cruelty of the treatment and the intention or purpose of causing suffering as key elements of that notion. The emphasis on these aspects undoubtedly reflects a certain conception of marriage and the social roles attributed to married women. As [Name18], [Name19], [Name20], and [Name21] rightly point out [Cuestiones sin resolver en la Ley integral de medidas contra la violencia de género: las distinciones entre sexo y género, y entre violencia y agresión. Papers: Revista de Sociología[Name1] Barcelona: 87, First Quarter, 2008, 187-204], \"This approach [of extreme cases] contributes to the consolidation and reproduction of the position of men and women, because it individualizes the problem, concealing its structural root, and reifies it, by presenting it as insurmountable, as if it were explained by the 'nature' of men and women instead of by a certain configuration of relations between the sexes that it is possible to change.\" Hence, it is imperative to overcome it because, without a doubt, it is tributary of an idea of the marital relationship and, in general, of the couple relationship that, instead of having the fundamental rights of those who participate in it as its basic ethical reference, focuses on the placing, generally on women, of the responsibility for preserving affective bonds even at the cost of their own integrity and dignity. The objective and subjective evolution that human rights law has undergone makes it urgent to demand full and complete respect between both spouses as an essential element of life and marital stability and to redefine cruel treatment (sevicia) to understand it as linked, on the one hand, to the right of every woman and, more broadly, of every person to live free from any form of violence, recognized, in the case of the former, in the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convención interamericana para prevenir, sancionar y erradicar la violencia contra la mujer)[Name1] which forms part of our legal order and, by its content regarding human rights, integrates the parameter of constitutionality that judges must apply as a priority (Article 48 of the Political Constitution (Constitución Política)[Name1] and, on the other hand, to the construct \"violence against women\", whose development in recent times has occupied different disciplines. In its Article 3, that international instrument textually provides that \"Every woman has the right to a life free from violence, both in the public and private spheres.\" In this way, a fundamental right is established in favor of women, which obliges the State to provide them immediate and effective protection against any act of violence committed against them and prevents, on the one hand, its justification under any hypothesis and, on the other, failing to grant it its indisputable social and legal significance on the pretext, for example, that it is insignificant. Article 4 ibidem establishes that \"Every woman has the right to the recognition, enjoyment, exercise and protection of all human rights and to the freedoms enshrined in regional and international human rights instruments. These rights encompass, among others: [Name13]. the right to have her life respected; b. the right to have her physical, mental and moral integrity respected; c. the right to liberty and personal security; d. the right not to be subjected to torture; e. the right to have the inherent dignity of her person respected and her family protected; f. the right to equal protection before the law and of the law; g. the right to simple and expeditious recourse before the competent courts, which will protect her against acts that violate her rights [Name1] These norms must find significant development both in ordinary legislation and in the interpretation and application made of them; all activities that cannot ignore the fact that violence is a typical violation of people's fundamental rights, specifically, the rights to life, to health, and to physical and psychological integrity, with the potential to cause irreversible damages to those who experience it as victims. In other words, and for what is relevant here, the customary conception of cruel treatment (sevicia) does not accommodate the principle of human dignity and the recognition of the personhood of all, characteristic of this historical moment, and ignores that the couple relationship and family life should be spaces for encounter, fulfillment, autonomy, and the adequate development of human beings, rather than an instrument to subject them to humiliations of any kind under the pretext of affective closeness and the preservation of bonds. As [Name22] points out [Name1]Familia y cambio social (de la \"casa\" a la persona)[Name1] Madrid: Civitas Ediciones, S. L., 1999, p. 86], [Name1] one must conclude that in a system based on the protection and consequent effectiveness of fundamental rights, the function of Family Law must be to prevent the conflicts that occur within the group from being able to injure the fundamental rights of any of its members. Because belonging to a family does not imply the loss or diminution of any right. This (sic) is the main justification of the norms and is also that of their characteristics: imperativeness and the intervention of the Judge as a form of control of the system's effectiveness.\" As a consequence of all of this, at present it is necessary to focus the concept of cruel treatment (sevicia) on the aggression itself and, above all, on the principle that nothing justifies incurring in that reprehensible conduct, instead of emphasizing the conscious intention (\"malice\") of its author or the amount of harm produced (\"excessive cruelty\"). If one does not act in this way, aggressions against women would be assessed in an openly sexist manner, perpetuating, among other things, the prevailing gender order [see [Name23], [Name24] (1990). El concepto de agresión en una sociedad sexista. In [Name25] and [Name26] (compilers). Violencia y sociedad patriarcal[Name1] Madrid: Editorial [Name27], pp. 17-28].-
X.- QUALIFICATION OF THE DEMONSTRATED FACTS[Name1] From the indicated perspective, it is necessary to conclude that both the assertions regarding the facts on which Mrs. [Name2]. based her claim and that she has been a victim of psychological cruel treatment (sevicia) were proven. Its seriousness and intensity are unquestionable. Consequently, having suffered repeated, progressive, systematic, and multi-offensive behaviors, committed by her husband, it is illegitimate for the State to deny her rights to legally sever ties with the person who has treated her in that reprehensible manner and to recover her freedom of status. Thus, the appellant is correct when she reproaches that, for the sake of maintaining family unity, the First Instance Court seems to require her to endure the mortifying words used by her husband to refer to her and overlooked that she is the holder of the fundamental rights to respect for her honor and her human dignity. It is appropriate, then, to decree the divorce as requested and order the registration of this judgment in the Marriage Registry of the Province of Alajuela, in volume xxx, folio xxx, entry xxx, which must be verified through the enforcement order (ejecutoria) once it has become final (firmeza). The defendant must also be declared the spouse guilty of the alleged cruel treatment (sevicia) and, by express provision of numeral 173 of the Family Code (Código de Familia)[Name1] exonerate his wife from the obligation to provide him with spousal support (alimentos). For the reasons explained in the following sections, an additional basis for declaring the dissolution of the bond between the parties is that, in his statement of defense, Mr. [Name4].\n\nstated the following: “By virtue of the disagreements and different ways of thinking between the plaintiff and my client, there is no objection to declaring the marriage bond dissolved as requested.” (Folio 99)[Name1] This statement was reiterated in his closing argument, visible at folios 357-359.-
XI.- THE FUNDAMENTAL RIGHT TO MARRY AND ITS ESSENTIAL CONTENT[Name1] In response to the requirements of family consent contained in the 19th century Civil Codes and as a corollary of the need to eliminate irrational obstacles to its provision, the right to marry attained fundamental status after the Second World War. In its Article 16, the Universal Declaration of Human Rights[Name1] recognizes that \"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.\" Article 17 of the American Convention on Human Rights[Name1] approved by Law No. 4534 of February 23, 1970, is expressed in similar terms and imposes on States the duty to take appropriate measures to ensure the right, as well as the adequate equivalence of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. Finally, Article 23 of the International Covenant on Civil and Political Rights[Name1] approved by Law No. 4229 of December 11, 1968, states: \"2. [Name1] recognizes the right of men and women of marriageable age to marry and to found a family. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.\" It is in the United States, starting with the case Loving vs. Virginia (388 U.S. 1, 12 [1967]), that the theory of the right to marry as a fundamental right is introduced more clearly. In that matter, the Supreme Court declared that [Name1] the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the \"basic civil rights of man.\" To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes... is surely to deprive all the State's citizens of liberty without due process of law. Under our Constitution, the freedom to marry, or not marry, a person [Name1] resides with the individual and cannot be infringed by the State.” [Cited by [Name28], [Name29] (1999). Familia y cambio social (De la “casa” a la persona)[Name1] Madrid: Civitas Ediciones, S. L., p. 94]. In Costa Rica, based on the provisions of the cited international norms and Article 52 of the Political Constitution, the Constitutional Chamber has recognized this condition and has established that it cannot be unreasonably impeded or obstructed by the State (votes no. 3693-94, of 9:18 a.m. on July 22, 1994, and 4287-95, of 3:15 p.m. on August 3, 1995). If this is so, the hermeneutic principles pro ser humano and pro libertate always oblige interpreting the norms that regulate it in the manner most favorable to its holder and to its full force. Furthermore, as Judge Adrián Vargas Benavides pointed out in his brave dissenting vote contained in the judgment of the Constitutional Chamber No. [Telf3], of 2:46 p.m. on May 23, 2006, [Name1] it should not be overlooked that progressiveness is an inherent quality of fundamental rights, positively enshrined in Article 26 of the American Convention on Human Rights, and which has been recognized by the Chamber on several occasions, making it necessary to interpret the norms that recognize fundamental rights in a broad and prospective manner, without allowing setbacks in this matter.” The fundamental right to marry derives, ultimately, from the right to freedom; it is configured as individual, subjective, and instrumental with respect to the free development of personality, affectivity, and sexuality, and manifests itself in diverse consequences, such as the free choice of one's own spouse, the form in which the bond is to be constituted, and the right not to remain married [[Name30], [Name31] (2007). El derecho a contraer matrimonio en la Constitución española. Ambito Jurídico[Name1] Rio Grande: 39, March 31. Retrieved June 16, 2008, from http://www.ambito-juridico.com.br/site/index.php? n_link=revista_artigos_leitura&artigo_ id=1722 and [Name28], op. cit.[Name1] p. 99]. From all this it follows that the legal system will grant special and privileged protection to marriage, provided that it truly contributes to the personal fulfillment of the spouses in freedom and equality and is the channel through which their fundamental rights can develop. In this context, dating back to Athenian law, alongside its function as a necessary sanctioning mechanism in the face of the culpability of one of the spouses, the dissolution of the bond is also conceived as a safety valve in a critical marital situation, manifested in irreparable disunity, which it seeks to resolve. As indicated by [Name32]. [Name33] (Matrimonios en crisis y respuestas legales: el divorcio unilateral o de común acuerdo en el derecho ateniense. [Name34]: Revista de filología clásica[Name1] Barcelona: vol. 25, No. 1, 2003, 9-29. Retrieved June 9, 2009, from http://dialnet.unirioja.es/servlet/articulo?codigo=645785) [Name1] marriages in crisis are an undeniable problem that every legal system, archaic or current, sets out to regulate.” Divorce thus appears as that inescapable legal response that, unlike mere de facto separation, produces two fundamental effects: on the one hand, it extinguishes the legal relationships of the dissolved marriage and, on the other, it allows the former spouses to subject a future relationship to the rules of civil marriage, with which, besides forming part of its essential content, it is also instrumental with respect to the right in question.-
XII.- FREEDOM OF MARITAL STATUS AS A WAIVABLE RIGHT[Name1] Certainly, Article 1376 of the Civil Code continues to provide that “A compromise (transacción) cannot be made on the civil status of persons, nor on the validity of marriage; but without the compromise (transacción) importing the acquisition or loss of status, it may be made on the pecuniary rights which could be deduced from the declaration of civil status in favor of a person.” However, it is obvious that this norm, when analyzed from the perspective of the fundamental right to marry and, in particular, from the prevailing social reality, cannot be applied in the terms in which it is drafted. The introduction of divorce and judicial separation by mutual consent in family legislation constituted its first tacit modification, since, otherwise, it would not be possible to recognize the possibility of the spouses to dispose of, as they do, their marital status (estado civil). The need to meet certain requirements to do so does not nullify that conclusion. Identical results are reached if what is considered is the right to resolve conflicts peacefully and the practice of conciliation in this matter. If marital status (estado civil) were, in truth, inalienable (indisponible), it would not be possible to admit that mode of concluding litigation and, of course, it would be imperative to eradicate all jurisdictional activity that promoted or permitted it. Finally, the recognition of the right to freedom of marital status as an integral part of the fundamental right to marry dealt a great blow to that idea, which takes on definitive aspects with the cited Law No. 7532, of August 8, 1995, which added subsection 8) to numeral 48 of the Family Code and introduced de facto separation as a ground for divorce. As accurately noted by [Name35]. [Name36] [Name1]Derecho de Familia[Name1] Buenos Aires: Editorial Astrea, third edition, volume I, 1998, p. 66) [Name1] the divorce –or personal separation– proceeding based on the alleged voluntary interruption of cohabitation without the will to be united, is excluded from the classic inquisitorial process that procedural doctrine recognized as the most suitable for resolving controversies concerning the status of persons, because the substantive relationship was deemed inalienable (indisponible) for the parties. The recognition of facts, and the confession, as sufficient proof of the fact of separation alleged by the plaintiff (sic) means that the substantive relationship itself is alienable (disponible). Paraphrasing traditional teachings, we can maintain that in this proceeding, the litigious object corresponds to a material right of which the spouses can freely dispose. And in this, from [Name37], a significant sphere is shown that autonomy of will has gained for itself, within matrimonial law, for the resolution of conjugal conflict”. Consequently, in our opinion, it is sufficient to consider the ground for divorce alleged in this matter proven when the defendant consents to the claim (se allane), when his or her default is produced, or when he or she is deemed to have confessed. It must be clear, however, that this possibility of dissolving the marriage bond by the will of the spouses does not translate into a total rupture with the concept of public policy but rather into its redefinition. What continues to be inalienable (indisponible) are the rights of minor children under eighteen years of age, as well as the legal attribution of duties and obligations regarding them [Cf.: [Name38], [Name39] (2005). El orden público en el Derecho familiar mexicano[Name1] Mexico, D. F.: paper presented at the Instituto de Investigaciones Jurídicas of the Universidad Nacional Autónoma de México, within the framework of the International Congress of Family Law: Cultures and Compared Legal Systems, November 22 to 24, 33 pp. Retrieved October 20, 2007, from http://www.juridicas.unam.mx/sisjur/familia/pdf/15-147s.pdf]. Hence the intervention of the State through the jurisdictional process.-
XIII.- THE INALIENABILITY (INDISPONIBILIDAD) OF MARITAL STATUS (ESTADO CIVIL) IN A DEMOCRATIC RULE-OF-LAW STATE[Name1] The origin of the classic idea of the inalienability (indisponibilidad) of marital status (estado civil) deserves a separate comment, which, despite what has been noted, continues to be the majority view in Costa Rican courts. Without a doubt, it is a remnant of marital indissolubility, elevated to the category of dogma by canon law in the late Middle Ages and defended, even today, by the Catholic Church. If this is so, the confusion between the legal and the religious plane is more than evident and unsustainable in a State that is unable to impose a particular morality on the population if it is committed to and governed by the democratic principle and the fundamental right to freedom of religion. In Chile, within the framework of the discussion that opened when, recently, vincular divorce was regulated, [Name40] (La Ley Civil ante las rupturas matrimoniales. Estudios públicos[Name1] Chile: 85, summer, 2002, pp. 6-15. Retrieved June 17, 2008, from http://www.cepchile.cl/dms/lang_1/doc_3017.html) pronounced with enviable sharpness in the following terms: “An ancient doctrine of natural law, which has been repeatedly invoked in the discussion about divorce, essentially establishes that in fundamental matters for coexistence, civil law must be founded on the moral principles that provide for the good of society and of persons. Correspondingly, marriage is conceived as an institution of natural law in a double sense: because it was not created by civil law, but pre-exists the organization of the State; and because it favors the perfection of spouses and children and contributes to the general good of society. [Name1] From these premises a stronger doctrine has been inferred, namely that marriage is indissoluble according to natural law, since only in that way could it fulfill its purposes. In a sacramental dimension, this rule has been energetically sustained from early times by canon law, a clear difference of the Catholic Church from other Christian churches, including the Greek Orthodox. From this it has followed, almost mechanically, that the recognition of marriage as an essential institution for human happiness and perfection excludes the acceptance of divorce by civil law. [Name1] Above all, in a pluralist society, where marriage lacks the sacramental dimension conferred by canon law, a certain differentiation between the legal and the moral is inevitable. This is shown in that nothing more directly undermines authentic religiosity than its politicization. Therefore, one must not pretend that civil law is an exact reflection of the strongest convictions. To this is added that this pretense is also risky, because once accepted, the threat arises that customs will be left under the extensive control of the public apparatus (which by nature is the fundamentalist or totalitarian ideal, depending on whether that pretense has a religious or purely political basis). [Name1] Hence, no matter how strong our normative convictions regarding the institution of marriage, the task of law cannot be limited to expressing those beliefs. Its typical function is rather to provide rules to resolve the conflicts that follow from rupture, abandonment, and other undesired ills. From the usually desolate reality of rupture follows the need for fair and effective norms that regulate custody of children, the economic duties of separated spouses, and the legal effects of the formation of new couples who aspire to be permanent. [Name1] Ultimately, the question is whether civil law must observe indissolubility as an axiomatic principle, as it has done until now (unsuccessfully, moreover). Or whether, on the contrary, it must start from the verification that due to lack of lucidity or simply because man (sic) often fails in his most delicate enterprises, marital rupture is a recurring evil, which risks, once produced, becoming an even greater evil. My inclination is to think, from a normative perspective, that civil law must limit itself to preventing the evil of marital rupture from growing. The maintenance of a legal shell lacking relational content makes it difficult for the rupture, which precedes any interference of law, to occur with the minimum human cost.” Dealing with a fundamental right, the final reasoning of the cited author finds support in what is called substantive due process, from which derives the requirement of reasonableness of any norm, act, practice, or legal interpretation. The Constitutional Chamber has rightly pointed out that a “An act limiting rights is reasonable when it meets a triple condition: it must be necessary, suitable, and proportional. The necessity of a measure makes direct reference to the existence of a factual basis that makes it necessary to protect some good or set of goods of the community –or of a certain group– by adopting a measure of differentiation. That is, if said action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid. Suitability, for its part, involves a judgment concerning whether the type of restriction to be adopted fulfills or not the purpose of satisfying the detected need. The unsuitability of the measure would indicate that other mechanisms may exist that better solve the existing need, some of which may fulfill the proposed purpose without restricting the enjoyment of the right in question. Its proportionality, meanwhile, refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, so that the limitation is not of markedly greater magnitude than the benefit intended to be obtained for the benefit of the community. Of the last two elements, one could say that the first is based on a qualitative judgment, while the second starts from a quantitative comparison of the two objects analyzed.\" (Vote No. 8858-98, of 4:33 p.m. on December 15, 1998, reiterated in No. 2001-378, of 2:37 p.m. on January 16, and in No. [Telf4], of 10:10 a.m. on April 25, both of 2001). In our judgment, it is obvious that the interpretation made regarding proof of the grounds for divorce, besides being contrary to a fundamental right, does not respond to any parameter of reasonableness that could justify its limitation. Consequently, we depart from what has traditionally been resolved, which, in any case, does not constitute binding jurisprudence (Article 13 of the Ley de la Jurisdicción Constitucional).-
XIV.- THE DOCTRINE OF PIERCING THE CORPORATE VEIL (LEVANTAMIENTO DEL VELO SOCIAL). Due to the facilities it offers in both commercial dealings and the tax order, the use of legal entities (personas jurídicas) to register and manage one's own assets is increasingly frequent in Costa Rican society. When this includes assets with a nature of community property (ganancialidad), the other spouse or partner has, at least, three possibilities: a) to claim their eventual right of participation over the shares or partnership quotas assuming they are or were in the name of their partner or former partner; b) to demand the declaration of community property (ganancialidad) over specific goods and, connectedly, their reinstatement to the assets of their consort or partner, considering that the act of disposition presents some defect of consent; and c) to request the piercing of the corporate veil (levantamiento del velo social), so that the legal personality cannot be invoked against the person bringing the action. The first two claims necessarily assume that, at some time, the defendant held the ownership of certain assets: the shares or partnership quotas or the assets of which the legal entity (persona jurídica) is the owner. Unfortunately, these assumptions are not usually the rule, since, in not a few cases, the constitution or acquisition of companies occurs even before the marriage or the start of the union, their shares or quotas are not registered as property of the other, nor were the movable and immovable assets of which those entities are formally the owners part of their assets. The illegitimate affectation of the rights of others that situations of this type can bring with them has given rise to a crisis of the concept of legal entity (persona jurídica) and the need to reformulate it. Within the group of theories that do not devalue that institution as a configuration of a civil and commercial reality and that, in turn, demand the establishment of control mechanisms to avoid abuse of the legal model committed under the protection of the dogma of the \"submission\" of legal personality, the one advocating the judicial application of the doctrine of piercing the corporate veil (levantamiento del velo social) stands as the maximum exponent, with which its formalist conception enveloped it and thus break its intimacy or reserve in order to judge the reality of its existence. This judicial technique allows delving into its bosom, with the aim of investigating its reality without stopping at the form and, in that way, being able to unveil any possible fraud or abuse that may have been committed from its own structure. It arose in the U.S. judicial system, under the protection of its equity regime, which has a supplementary and accessory function of the common law[Name1] main and prevailing regime. It is known as «disregard of legal entity doctrine» or, according to the name coined in 1912 by Professor [Name41], «piercing the corporate veil» [Columbia Law Review 496] and its first application is usually placed in the case Bank of the United States v. Deveaux[Name1] decided in 1809 by the celebrated Chief Justice [Name42], who, having raised the question in terms of jurisdictional competence, maintained that it should be heard by the Federal Court and proclaimed that, even when one of the parties was a corporation, its real substratum must be considered, the reality of its partners as individual persons, and thus vindicated the human element that ultimately allows the emergence of the corporation. On such a basis and in application of Article 3 of the Federal Constitution, according to which the jurisdiction of the Federal Courts was limited to controversies between \"citizens\" of different States, a condition not recognized for corporations, he concluded that, dealing with partners belonging to different States, the litigation should be tried by the Federal Court. In this way, he disregarded the consideration, recognized by that same body from its beginnings, of the corporation as an assembly of persons, indivisible, autonomous, independent, and immortal, and penetrated into the condition of its components to decide according to it. Almost a hundred years later, in the case Salomon v. Salomon & Company Limited[Name1] decided in 1897, English jurisprudence failed to transcend the exacerbated formalism of legal personality and ignored the frauds that had been occurring through joint-stock companies (sociedades anónimas). \n\nThe defendant, Mr. A.S., together with six members of his family (his wife and his children), formed a company [Name1] *Salomón & Co. Ltd.* [Name1] to which he sold all the assets of his fur sales business that he had been running personally for several years. Each of his family members held one share and he kept the rest (20,000). The company paid him a portion in cash and for the remainder, a series of preferred obligations were issued in his favor. Subsequently, the business did not prosper and that legal entity became insolvent and entered into liquidation. Its liabilities exceeded its assets and Mr. [Name13]., its administrator, decided to exercise his preferential collection right over the corporate assets, absorbing all of them and creating severe harm to the non-preferred creditors who initiated the liquidation. Both at first instance and on appeal, it was declared that his family members were mere front men (testaferros), while the House of Lords, surprisingly, overturned the decision to affirm that no personal liability could be attributed to Mr. S.A. by virtue of the dogma of the separation of assets and personalities. That precedent of English law and the reluctance in the acceptance of the figure have had no influence on the doctrine developed in the United States, which, before that case, had been applying the doctrine of *«disregard of legal entity doctrine»* [Name1] for several decades, a doctrine expressed through imprecise and generic maxims of law, based on two basic concepts: \"fraud\" and \"agency\" (with no direct equivalent in *civil law* [Name1]). According to this doctrine, courts can pierce the corporate veil, unveil the real composition of the entity, disregard the asset separation between the legal entity and the shareholders, and dispense with or overcome its external form to reach its shareholders and the other entities that replaced it or were concealed by it, with an impact on their respective assets and, of course, on the property sheltered under its coverage. Although this theory was conceived as a reaction against abuses of personification, it has developed most extensively in the field of corporations (sociedades anónimas). If the corporate form is used for a fraudulent purpose and is misaligned with its purpose, the courts can then dispense with it or with some of its consequences, in particular, the absolute separation between the legal entity and each of its shareholders, with the correlative separation between one and the others. The generality and ambiguity in the content of the concepts on which it is based facilitated their assimilation with other mechanisms typical of continental law, such as the institutions of law fraud (fraude de ley) or abuse of rights (abuso de derecho). In European *civil law* countries, the introduction of that doctrine is usually set in 1955, coinciding with the publication in Germany of the work by Professor [Name43] titled *«Rechtsform und Realität juristischer Personen»* [translated by [Name44] and published in Spanish in 1958 with the title *«Apariencia y realidad de las sociedades mercantiles. El abuso de derecho por medio de la persona jurídica»* [Name1]], which is situated within the revisionist movement of the formulation of the concept of legal entity taking place on that continent at that time. Based on U.S. jurisprudential lucubrations, he raised the possibility of lifting the veil of legal entities for the same purpose. From that moment on, the discussion has been arduous, fundamentally in German, Italian, and Spanish law. German jurists call it *«durchgrff der juristischen person»* [Name1]. In Spain, authors such as [Name45] and [Name46] [Name1] *«¿Crisis de la sociedad anónima?»* and *«Personalidad jurídica»* [Name1] have denounced corporate abuses and indicated that the courts must react to that phenomenon by lifting the corporate veil. Based on the discussion introduced by [Name47], Spanish jurisprudence has not hesitated to admit it in multiple precedents. It was in the 1980s that the doctrine of lifting the veil was properly consolidated in the jurisprudence of the Supreme Court. The legitimacy of the jurisprudential adoption of the figure has been rooted in reasoning more axiological than legal, as it has been said that in the conflict between security and justice, values enshrined in the Spanish Constitution, the latter must prevail, allowing the courts to penetrate the personal substratum of the entities or companies to which the law confers legal personality, to avoid abusive or fraudulent situations. The expression *“doctrine of lifting the veil”* was used for the first time in the judgment of that body of May 28, 1984, considered the remote antecedent of its modern conception. For the purposes relevant here, that pronouncement pointed out that *[Name1] the most authoritative doctrine, in the conflict between legal certainty and justice, values now enshrined in the Constitution (arts. first, 1 RCL 1978\\2836, and ninth, 3 RCL 1978\\2836), has prudentially decided, and according to cases and circumstances, to apply by way of equity and acceptance of the principle of good faith (art. seventh, 1 LEG 1889\\27, of the Civil Code), the thesis and practice of penetrating the personal 'substratum' of the entities or companies, to which the law confers their own legal personality, in order to prevent that, under the shelter of that fiction or legal form (of obligatory respect, of course), private or public interests may be harmed or it may be used as a path for fraud (art. sixth, 4 LEG 1889\\27, of the Civil Code), admitting the possibility that judges may penetrate ('lift the legal veil') into the interior of those persons when necessary to avoid the abuse of that independence (art. seventh, 2 LEG 1889\\27, of the Civil Code) to the detriment of others or of 'the rights of others' (art. 10 RCL 1978\\2836 of the Constitution) or against the interest of the shareholders, that is, of a misuse of its personality, of an 'antisocial exercise' of its right (art. seventh, 2, of the Civil Code).”* Previously, the Spanish courts applied the so-called *“doctrine of third parties”* [Name1], based solely on fraud and the principle of good faith, by means of which an attempt was made to incorporate the so-called *“Missachtung de Rechtform der Jusistiesche Perdon”* and the aforementioned *“disregarding her corporate entity”* [Name1], which did not have the same scope as the theory of *disregard* [Name1], the latter being notably broader (see Supreme Court judgments of October 8, 1929, December 12, 1950, June 22, 1956, April 30, 1959, and February 21, 1969). In a ruling of June 7, 1927, the Supreme Court denied the status of third party to an alleged family company, formed to breach an obligation derived from an arbitration award. Although the two doctrines used in Spain are different, the purpose achieved by applying either of them is the same: to penetrate the corporate *substratum* [see, for all, [Name48], [Name49] (2008). *La doctrina del levantamiento del velo societario en España e Hispanoamericana* [Name1] Valencia: tirant lo blanch].-\n\n**XV.-** **THE LIFTING OF THE CORPORATE VEIL IN COSTA RICA.** As noted, the doctrine of lifting the veil, also studied as abuse of legal personality, abuse of personification, or disregard of legal personality, had its origin in a legal system whose renewal is based on jurisprudential precedents, issued by courts of equity. Hence, when trying to apply it in a system of Roman origin like the Costa Rican one, the difficulties to overcome are multiple, especially when attempting to justify its inclusion through jurisprudence, based on axiological criteria of difficult delimitation and limited intersubjectivity, such as justice, which is privileged over positive norms. In most legal systems, given the existing legal vacuum, there is a lack of clear parameters or guidelines to lift the veil, for which, ultimately, it is the judicial authority, wielding its free will and guided by its own concept of justice, that decides casuistically the circumstances to do so. In order to avoid arbitrariness given the risks this entails, some have incorporated the institute in various legal provisions, such is the case of Argentina, Uruguay, and the Dominican Republic. The same has not happened with Spanish legislation, which has left the definition of its boundaries to jurisprudence. In Costa Rican positive law, there is no express canon that authorizes the disregard of the legal personality of the commercial company, nor the asset separation that assists it. This absence of a written legal norm obliges the proper integration of the current legal system. In the first place, it is necessary to bear in mind that, under the terms of Article 41 of the Political Constitution, *“Resorting to the laws, everyone must find reparation for the injuries or damages they have received in their person, property, or moral interests. They must be given prompt, full justice, without denial and in strict conformity with the laws.”* And, even though it is possible that, by virtue of that precept, it could be considered that the courts must resolve the disputes submitted to their knowledge based on express legal texts, it should not be forgotten that *[Name1] they have the inexcusable duty to resolve, in any case, the matters they hear, for which they will adhere (sic) to the system of sources established.”* (Article 6 of the Civil Code [Name1]). In an identical sense, the second, third, and fourth paragraphs of Article 5 of the Organic Law of the Judicial Branch provide that *“The courts may not excuse themselves from exercising their authority or from ruling on matters within their competence due to a lack of applicable norm and must do so in accordance with the written and unwritten norms of the legal system, according to the hierarchical scale of its sources. [Name1] The general principles of Law and Jurisprudence shall serve to interpret, integrate, and delimit the field of application of the written legal system and shall have the rank of the norm they interpret, integrate, or delimit. When it comes to supplying the absence and not the insufficiency of the provisions regulating a subject, said sources shall have the rank of law. [Name1] Uses and customs shall have a supplementary character to written Law.”* For its part, Article 1 of the Civil Code establishes that *“The written sources of the Costa Rican private legal system are the Constitution, the duly approved, ratified, and published international treaties, and the law. Custom, uses, and the general principles of Law are unwritten sources of the private legal system and shall serve to interpret, delimit, and integrate the written sources of the legal system.”* Under the terms of Article 4, *“The general principles of Law shall be applied in the absence of a written norm, use, or custom, without prejudice to their informing character of the legal system.”* And, lastly, Article 11 requires weighing equity in the application of norms, but also establishes that *[Name1] the resolutions of the Courts may only (sic) rest exclusively on it when the law expressly permits it.”* Consequently, at first instance, written norms must be applied, according to the corresponding hierarchical order, and, in their absence, recourse may be had to unwritten sources, among which equity is not included. Even though its usefulness in the interpretation of norms cannot be ignored, the latter has a residual and derived value as a source of law: express legal authorization is necessary for a decision to rest exclusively on it. Therefore, from the cited regulatory list, it follows that equity cannot be the legal basis for the doctrine of lifting the corporate veil, because it would imply an open denial of express provisions that, by constitutional and legal mandate, must be applied in the first place. However, this does not mean that it cannot be in force in Costa Rica. Two institutes allow it. On the one hand, the theory of abuse of rights (abuso del derecho) and, on the other, that of law fraud (fraude de ley), set forth, in that order, in Articles 22 and 20 of the Civil Code [Name1], under whose terms: *“The law does not protect the abuse of rights or the antisocial exercise thereof. Any act or omission in a contract, which due to the intention of its author, its purpose, or the circumstances in which it is carried out, manifestly exceeds the normal limits of the exercise of a right, causing damage to a third party or to the counterparty, shall give rise to the corresponding indemnification and the adoption of judicial or administrative measures that prevent the persistence of the abuse.”* and *“Acts carried out under the cover of the text of a norm, that pursue a result prohibited by the legal system, or contrary to it, shall be considered executed in fraud of the law and shall not prevent the due application of the norm that was intended to be circumvented.”* Now, the legal possibility that subjects with legal capacity have to form companies or be part of them is a concrete manifestation of the fundamental freedoms of association and commerce, recognized, among others, in Articles 25 and 46 of the Political Constitution [Name1]. For this reason, it is not possible to presume that someone who, in exercise of these freedoms, creates or forms part of commercial companies is abusing their right. However, if they do so with the purpose of hiding or diverting their assets, they undoubtedly distort the purposes for which these are recognized as fundamental rights and, therefore, despite its appearance of legality, it constitutes an antisocial exercise of rights, before which a complacent attitude cannot be assumed and the abuses that under the shelter of the corporate legal fiction (entelequia jurídica societaria) are verified cannot be ignored. The abusive act is constituted by both action and omission, insofar as they are contrary to or deviate from the destination or the economic-social function of the right or manifestly exceed the normal limits of its exercise —abusive or antisocial exercise—. If, in addition, those unconfessable interests cause material or moral damages to third parties, not only can they not find legal protection, but they oblige their reparation and the ordering of measures that prevent the persistence of the abuse. The abusive act is a species of the genus of illicit acts (Article 632 of the Civil Code [Name1]), whose conceptualization, as inferred from what has been indicated, is not exhausted in the merely formal; that is, contrary to written law, but encompasses a material notion of unlawfulness. Its main legal effect is the duty to repair the harm caused. Law fraud operates, generally, outside any relationship of reciprocity and implies a concealed infringement of the law, carried out under the appearance of legality. It presupposes the existence of two norms: the covering norm, which gives a legitimate appearance to a certain legal act, which, in reality, intends to evade the consequences or effects of the other, the defrauded norm. It has in common with abuse of rights that the intention is to obtain a result contrary to the legal system, disguising the act or transaction with legality, thanks to some legal provision. But, unlike the former, it does not require the commission of a specific damage, the demonstration of the will to harm a third party, or that the person who commits it is the holder of a subjective right. Thus, it is sufficient to prove the interest in circumventing compliance with the legal system, in some of its specific provisions. Among many other hypotheses, law fraud exists both when the covering norm does not confer complete and perfect protection for the person who seeks shelter under it, and when the truly applicable norm is circumvented, adopting the guise of a legal figure regulated by another that responds to a different purpose. Both the theory of abuse of rights and that of law fraud find their original source in the principle of good faith, set forth, among other precepts, in Article 21 of the Civil Code [Name1], which must inspire the exercise of all rights.-\n\n**XVI.-** **THE LIFTING OF THE CORPORATE VEIL IN NATIONAL JURISPRUDENCE.** The Costa Rican jurisdictional bodies have resorted on several occasions to the doctrine of lifting the corporate veil. In its vote no. 128-F-98, at 2:40 p.m. on December 16, 1998, the First Chamber (Sala Primera) pointed out that: *“It consists of the possibility of the judge to determine who lies behind the legal entity. It seeks to resolve situations of legal transcendence not through the legal entity, but through the real subjects who effectively act under that appearance. It has basically been used in contractual breaches, acts of unfair competition, law fraud -particularly in tax matters-, fraudulent damage to the detriment of a third party, and in the bankruptcies of corporations (sociedades anónimas). In our country, there is no treatment in this regard in commercial or civil matters. It is observed basically in the jurisprudential treatment in labor matters when resolving on the reality contract and determining the true employer-employee relationship. At the legislative level in tax law, it is used particularly to determine the obligor and to avoid the fractioning of capital. In the recent Consumer Protection and Defense Law, it allows the consumer to know the producer.”* In labor matters, votes of the Second Chamber (Sala Segunda) nos. 2000-110, at 4:00 p.m. on February 4; 2000-137, at 8:55 a.m. on February 9, both from 2000, and 2001-770, at 3:20 p.m. on December 20, 2001, can be cited. Now, the concepts upon which the doctrine of lifting the veil has been forged, both during its birth and in its subsequent development in matters such as administrative, tax, and labor law, do not, however, have a direct transposition into Family Law. While in those other matters the consequence of that doctrine is the legal imputation of liability to the natural persons who hold the status of directors, members, or shareholders of the commercial company for the abuse of legal personality, in Family Law, the opposite is ultimately sought: to hold the legal entity liable, through the attachment of its assets, for the debt for community property (gananciales) for which, in principle, only the natural person who holds the status of spouse or cohabitant is the titleholder. However, these scopes have not been adopted by the still incipient jurisprudence issued in this matter. As a sample of the timidity with which it has been applied so far, it is enough to cite what was resolved by the Second Chamber (Sala Segunda) in its vote no. 322, at 2:30 p.m. on December 17, 1997, reiterated in vote no. 2000-950, at 8:30 a.m. on November 24, 2000: *\"On the other hand, even (sic) though it is not necessary to issue any opinion concerning the capacity in which the purchasing legal entity participated, the fact that its representative is the same defendant demonstrates, without any possibility of objection, that the latter (sic) used the corporate veil to engage in an act of legitimate appearance, but whose purpose is entirely contrary to the legal system. There is no doubt, then, that this legal transaction [Name1] and its subsequent registration in the Public Registry of Vehicle Property [Name1] were made with the firm purpose of fraudulently excluding the referred asset from the community of community property. Thus, it was carried out in fraud of law, so it lacks the virtue of preventing the declaration of the community property nature of the economic value of its object, as was correctly established at second instance.\"* On the topic, it is also advisable to review the votes of this Court nos. 674-05, at 8:00 a.m. on June 6, 2005; 104-06, at 10:40 a.m. on February 1, 2006; 505-07, at 9:10 a.m. on April 11; 885-07, at 8:10 a.m. on June 29, both from 2007; 1508-08, at 8:25 a.m. on August 19, 2008, and 598-09, at 8:00 a.m. on April 15, 2009.-\n\n**XVII.-** **ANALYSIS OF THE EVIDENCE II: THE PROPERTY OWNED BY C.C., SOCIEDAD ANÓNIMA.** With the certifications issued by the National Registry, visible on folios 9-10 and 13-14, it was proven that C.C., Sociedad Anónima is the registered owner of the real estate in the Alajuela district, real folio registration number xxx, and of the vehicle with license plate xxx, and that both assets were acquired for value (oneroso) and registered, respectively, on October 17, 1983, and May 30, 1979. The plaintiff seeks for them to be declared as community property (gananciales) and, for that purpose, in her statement of claim she affirmed that *[Name1] C.C. SOCIEDAD ANÓNIMA [Name1] has been used for the purpose of registering some of the assets acquired during the marriage in its (sic) own assets but that in the end, what is registered in it (sic) is part of what should be considered as community property assets acquired during the marriage and thus shall be decreed in the corresponding judgment.\"* (Folio 22). In his initial brief, Mr. [Name50] omitted to refer to that assertion. His special judicial representative merely pointed out that the assets registered in the name of that legal entity *[Name1] cannot be the subject of discussion in this litigation, by virtue of the fact that they are acquisitions made by a legal entity, **that cannot be a party in a divorce lawsuit**.”* In the response to the fourth fact, which lists the movable and immovable assets whose declaration as community property is sought, he reiterated that they cannot be considered as such *[Name1] since they do not belong to my client.”* And he immediately added that, *\"In relation to the lease made to xxx S.A., I must indicate that my client does not receive the indicated sum of money.\"* (Folio 97). With the exception of what relates to that lease, to which it makes no reference, that legal entity answered both facts of the claim in identical terms (folio 110). Having failed to refute that during the validity of the marriage he became the sole shareholder of that company, holder of the legal identification number [Name1] and established through a deed granted by notary public [Name12] on March 29, 1974 (certification of legal standing on folio 21 and documentary evidence on folios 47-48) and, especially, having failed to demonstrate with suitable evidence who its shareholders are and when the change in the ownership of the shares occurred, he must be considered the owner of all the shares that make up its capital stock. The testimonies of Messrs. F. and R., visible on folios 329-331 and 342-343, do not constitute appropriate means of proof to establish who currently owns the referred securities, especially because they did not give an effective account of their statements and due to the degree of imprecision of their assertions. In any case, it is worth noting that, in accordance with the certification on folio 21, he serves as its president and holds its judicial and extrajudicial representation, with which what he stated when evacuating the examination formulated to him is not plausible (see minutes on folios 320-323). Likewise, it must be taken as proven that, during the validity of the marital bond, that legal entity was used to acquire and register in its name some of the assets acquired thanks to the common effort of the parties. That conclusion is supported by the fact that the plaintiff was a member of the board of directors of that company (confession of the defendant on folios 320-323), that the property in the Alajuela district, real folio registration number xxxx, was the common residence and workplace of the parties throughout the marriage (see the expert report and its clarification on folios 285-297 and 312-313), and that Mr. [Name4]. is, for his neighbors, the one who has disposed of that asset at his convenience.\n\nRegarding this, witness [Name13], the defendant's cousin, stated the following: \"They did acquire property, they lived on the farm that had a dairy. I don't know about the farm, I don't know how they acquired it, I'm not informed. [Name1] The farm, it was the one where milk was sold to Dos Pinos, it had about one hundred thirty head more or less, that's what I remember. Regarding the farm, I understand that when the father died they formed a partnership between him and the siblings, later [Name4] separated from the siblings and had the farm he has now, after he lived with her and the children grew up he decided to rent the farm. He rented the farm to Impropsa to plant pineapple. After they got married, well when they got together [Name4] depended on the father, when they married I repeat the same, he depended on the father and mother. Also [Name51], after they married he went to live in the mother-in-law's house and I don't know how it was, if it was donated or given, which is inside the farm that Don [Name4] has now. They acquired vehicles within the marriage, Don [Name4] always had a vehicle, when he received the farm he had a small Chapulin, a tractor. [Name52] indeed was a member and I can attest to it at Dos Pinos. [Name1] I can attest that he rents the property because he told me so himself. The farm was in the name of, I know it's a company but I don't know the name, I forget. When the tractor was received, it was around the year 80 more or less, it was a small Massey Ferguson. The farm belonged to [Name4]'s father, he acquired it after the father died, he and the siblings formed a partnership and later I don't know how, in the partnership they sold it to him or donated it, a cousin of mine who is a lawyer handled that, I don't know how they did it.\" (The citation is verbatim. Folios 266-268). For her part, Mrs. [Name11] [Name53] stated: \"[Name54] they do have property, where they lived I don't know how they did it but they did have that farm and he had his cattle, that's what they lived on, from a dairy they had. I only know about those properties. I don't know how they acquired them. [Name1] I have known them for about 34 years more or less. Yes, my husband did work with him, when we went to Pital we had a company and they partnered up, we opened a veterinary clinic that was B.'s and L.'s and the business was managed by my husband and [Name4] would come to stroll around, to look around, and [Name55] would come only to ask for money, and my husband was when he began to argue, he never showed a desire to work, after a year the business was divided and he was given the money that corresponded to him. They sold the milk to Dos Pinos. The cattle they had, I don't know how many but they did have several head, I always imagined quite a few because it was a rather large farm. At a glance I believe there were about 20 head approximately, because I am not very observant, he had horses, there was a Chapulin and he had his machinery and workshop. [Name52] indeed was a member, it's obvious since milk was delivered, I take it as a matter of logic. When I met them they lived in a small house in Veracruz, they lived humbly and the first children were born there, later they went to live with the mother-in-law at the house in Veracruz, later when [Name4]'s father died I don't know how, they settled in better. As for more property, I don't remember. In these 34 years he did have a vehicle and he changed them, he always had his car, he always had his good cars for work. On this farm they did acquire property for work, the car he had there which was for the farm, for getting around, since in that era it was difficult to leave Veracruz. He also had a Chapulín. [Name4] had about six siblings. [Name1] The farm, before being [Name4]'s, at that time belonged to [Name4]'s father.\" (Folios 269-270). An additional element is the nature of the farm in question: agricultural land, which, together with the work activity of Mr. [Name4]: farmer according to the documentary evidence at folio 55, allows us to identify that we are in the presence of a property that formally appears in the name of the defendant legal entity, but which, in material terms, has never ceased to be his, as he acted as its sole owner. It is essential to establish that, since Costa Rican law does not require the registration of the transfer of shares for it to acquire full validity and legal efficacy against third parties, the one who can and must prove that said dispositive act took place is the defendant company, or more properly, its partners or representatives. As the Second Chamber has pointed out, *\"Thanks to registry publicity, one can know who the founding partners are and what the contributed properties are, but not the subsequent transfers of each partner's shares, which are recorded in the shareholder registries kept for that purpose by each company (articles 261, 687 of the Commercial Code). Access to those books, and therefore to potential transfers in favor of third parties, does not enjoy the facilities that a public institution consultation provides under the referred terms. Hence, it is commonly difficult in a judicial proceeding to demonstrate 'ab initio' the status of partner. In accordance with the first paragraph of article 317 of the Civil Procedure Code, it is up to the plaintiff to demonstrate the constitutive facts of their right, which the plaintiff did in this case with the registry certifications whose assessment is being challenged and from which it is clear that the defendant was a founding partner of the companies [Name1] The defendant, on the other hand, according to the second paragraph of the cited ordinal, must prove the facts of his defense that exclude, oppose, or modify the plaintiff's claim. In that order of ideas and considering the mentioned difficulties, it does not escape the rules of logic and human experience—sound criticism—to start from a registry certification where the defendant appears as a founding partner to presume that he still is today, without thereby violating the first paragraph of article 317 and numeral 330 of the Civil Procedure Code, if there is no evidence to the contrary.\"* (Vote no. 97-271, of 10:50 hours on November 5, 1997). In a similar vein, this Court ruled in its vote no. 1508-08, of 8:25 hours on August 19, 2008 *[Name1] the executed party must demonstrate, by reason of being the majority partner, founding partner, and legal representative of the company owning the properties claimed to be community property (gananciales), that their origin comes from sources prior to the marital relationship and/or belonging to the company but prior to the marital relationship, since otherwise it must be presumed that they are properties acquired with the partner's personal contributions to the company, and as personal contributions made during the validity of the bond, the properties purchased with such contributions must be considered the fruit of joint effort, and therefore community property in the same proportion in which the partner is an owner with respect to the total shares.\"* This panel fully shares that reasoning and, therefore, declares the aforementioned farm and vehicle as community property (gananciales). It is worth specifying that, although we do not identify any illegitimate conduct in the decision to use the defendant legal entity to register the properties acquired during the marriage, we are clear that a legal fraud (fraude de ley) occurred when, upon their distribution being claimed, Mr. [Name4], in his personal capacity and as representative of C.C., Sociedad Anónima, attempted to deny Mrs. [Name2]'s right of participation by invoking the corporate veil and the consequent separation between the legal entity and the partners, and between the assets of each. That intention to prevent the liquidation of two of the community property assets, under the shield of the separation of assets, whose covering norm is article 102 of the *Commercial Code* [Name1], defrauds what is provided in article 41 of the *Family Code* [Name1], which develops the suppletory property regime of marriage and common-law unions. Once the legal fraud is verified, its effects are those provided by article 20 of the *Civil Code*; that is, the declaration of community property (ganancialidad) for the assets, with the legal consequences derived therefrom in order to guarantee compliance with the unsatisfied debt.-\n\n**XVIII.- THE COMMUNITY PROPERTY (GANANCIALIDAD) STATUS OF THE VEHICLE WITH LICENSE PLATE [Placa1]** [Name1] Although, as a general rule, by virtue of the freedom of administration and disposition provided in numeral 40 of the *Family Code* [Name1], acts of transfer of ownership carried out before the corresponding liquidation are presumed to be in good faith, this does not prevent recognizing the community property (ganancial) character of the net value of the property acquired during the marriage or common-law union. It must be taken into account that, based on numerals 21, 20, 22, and 1045 of the *Civil Code* [Name1], the case law has limited the rigor of that freedom and has denied it absolute character. Thus, in vote no. 142, at 10:00 hours on June 17, 1998, the Second Chamber considered that *\"These rules and principles impose upon judges the duty to prevent the right to deferred participation in community property (gananciales) from being circumvented, invoking, for example, the existence of an act of disposition that is formally valid and effective, but whose effect is, in reality, contrary to law.\"* (In the same sense, one may consult, among many others, the rulings of that Chamber Nos. 322, at 14:30 hours on December 17, 1997; 163, at 16:00 hours on July 9, 1998; 950, at 8:30 hours on November 24, 2000; 372, at 15:00 hours on July 26; 451, at 10:40 hours on September 6, the latter two from 2002, and 2008-26, at 9:40 hours on January 18, 2008). It must also be considered that the right over community property (gananciales) is not of a real nature but personal, credit-based, or of value and is embodied in a sum of money representing fifty percent of its net value, which must be paid by the spouse or cohabitant who results as the debtor. Hence, as case law has recognized, when it comes to making it effective, it is unnecessary for the assets to form part of the obligor's patrimony (see, for example, votes of the Second Chamber Nos. 214, at 15:10 hours on May 9; 372, at 15:00 hours on July 26, both from 2002, and 116, at 9:40 hours on February 25, 2004. The rulings of this Court Nos. 404-04, at 8:00 hours on March 5, and 2083-04, at 11:25 hours on November 24, both from 2004, pronounce in the same sense). Therefore, the spouse or cohabitant claiming the community property status of assets that their partner or former partner no longer holds title to can choose between requesting their reintegration through the exercise of a real action or requesting that their right be verified and declared taking into account those over which presumably fraudulent acts of disposition were carried out, as if they had not occurred, being able, in this case, to pursue any other asset owned by the debtor to satisfy it fully (vote of the Second Chamber no. 2000-950, at 8:30 hours on November 24, 2000). As the Second Chamber has reiterated, one thing is that the asset—or rather, its net value—can be declared community property (ganancial) and something very different is whether it is feasible to pursue it to achieve satisfaction of the family credit. *\"This is possible in the Costa Rican legal system, because the right to community property (gananciales) is of a credit nature, that is, personal. Hence, it is not necessary to reintegrate the referred asset into the patrimony of Mr. [Name1] because, to make effective the right over half of its net value, the creditor [Name1] can pursue any other asset belonging to the debtor and the latter could, if deemed pertinent, avoid the eventual enforced execution by voluntarily paying what corresponds.\"* (Votes of the Second Chamber Nos. 322, at 14:30 hours on December 17, 1997, and 142-98, at 10:00 hours on June 17, 1998. See, in a similar sense, the vote of the First Chamber no. 110, at 16:00 hours on September 29, 1981). In this matter, Mrs. [Name2] requested that the community property status be declared for the vehicle with license plate xxx, registered in the name of Mr. [Name9]. With the certifications at folios 15-16, 17-18, and 437-438, it is proven that her husband acquired that chattel property for consideration at the beginning of 2003 and transferred it to Mr. [Name9] the following year. That second sale was registered on January 22, 2004, less than two months before the separation between the parties, which occurred on March 14 of that same year. The disposition of that motor vehicle was made, therefore, within the so-called period of suspicion, when, moreover, the dissolution of the bond was imminent. Hence, even though the validity of the transfer of ownership act was not challenged through the exercise of the corresponding action for simulation, it is appropriate to recognize Mrs. [Name2]'s right of participation in the net value of the vehicle in question. As derived from the foregoing, the exercise of the connected real action for nullity of the transfer is not a requirement to make effective the personal right claimed.-\n\n**XIX.-** **THE OTHER CLAIMS FORMULATED** [Name1] The plaintiff requested the assignment of custody, upbringing, and education of her daughter [Name7], born on October 22, 1987, who at the date of filing the claim was under eighteen years old. But, since, to date, that young woman is of legal age, that claim lost current interest and, consequently, is inadmissible. She also claimed payment of legal interest on the amount at which the community properties (gananciales) are valued from March 2003 (sic) until the moment of their effective payment (folio 26). That extreme cannot be granted because the liquidation of the right of participation recognized to the plaintiff will be done on the updated net value of the assets that, definitively, have the condition of community property (gananciales). Lastly, and as it is not feasible to exclude the possible existence of other assets, chattels and non-registrable, that form part of the patrimony of any of the parties and have that character, the appropriate course is that, in accordance with what is established in numeral 41 of the *Family Code* [Name1], a generic declaration must be made of the right of each of them to participate in fifty percent of their net value; all of which must be defined and liquidated in the sentence execution phase.-\n\n**XX.- [Name56]** [Name1] In accordance with article 221 of the Civil Procedure Code and considering that no reason for exoneration applies, the defendant party must be ordered to pay both sets of procedural costs.-\n\n**XXI.-** **ANNOTATION OF THE CLAIM** [Name1] As the Constitutional Chamber has recognized, every person holds the fundamental right to precautionary protection. In its vote no. [Telf5], at 15:16 hours on May 25, 2005, it considered the following: *\"IV.- FUNDAMENTAL RIGHT TO PRECAUTIONARY PROTECTION. Based on an extensive and progressive exegesis of the essential content of the individual guarantee contained in ordinal 41 of the Political Constitution, that is, the right of litigants to obtain prompt and complete justice, it is possible to identify the atypical fundamental right of the parties to a proceeding to obtain precautionary protection. Indeed, the then Superior Contentious-Administrative Court, First Section, in its judgment-orders numbers 402 at 15:00 hrs. on November 29, 413 at 16:20 hrs. on November 29, 421 at 9:30 hrs. and 422 at 9:45 hrs. on December 12, all of 1995, has recognized and named it as such. Prompt and complete or effective judicial protection cannot exist if the jurisdictional body cannot exercise a flexible and expeditious power of precaution. Under this understanding, precautionary protection is an essential component or a specific manifestation of prompt and complete judicial protection, since, through it, the effectiveness of the definitive or merits judgment can be provisionally guaranteed. This right, forming an integral part of the essential core of the right to prompt and complete justice, cannot be denied, restricted, or conditioned by the legislator, and the judge must make it effective when there is danger to the effectiveness of the judgment. [Name1] [Name1] In further abundance, this fundamental right has strong support in the general principle of common or Chiovendian procedural law which states that 'the need to use the process to obtain justice should not become a damage to the one who probably has justice,' a principle that grants all judges a general power of precaution to adopt the necessary and indispensable provisional measures to prevent the physiological—normal and ordinary—and pathological duration of proceedings from being detrimental to the party who probably is in the right. Under this understanding, there is no legal reservation for the judge's precautionary measures or powers. [Name1] [Name15].- CONTENT OF THE RIGHT TO PRECAUTIONARY PROTECTION. The right to precautionary protection, insofar as it is embedded in the essential content of the more general right to prompt and complete justice, comprises the right to request and obtain from the jurisdictional body the necessary, suitable, and pertinent precautionary measures to guarantee the efficacy of the merits judgment—essential function of precautionary protection—if its prerequisites are met (appearance of a good right - fumus boni iuris - and danger in delay - periculum in mora -). Correspondingly, the jurisdictional body has the obligation to order or issue the provisional measure if the prerequisites for its adoption are met. From the essential core of the fundamental right to precautionary protection, two consequences can be extracted, namely: a) The granting of a precautionary measure does not depend exclusively on the free and prudent discretion or judicial discretion, and b) the ordinary legislator cannot deny, limit, restrict, or condition such a right. The extrinsic limits of this fundamental right are constituted by the principles of equality (article 33 of the Political Constitution), to avoid an unjustified privilege or an objectively unfounded distinction, and proportionality, in its various specifications of suitability, necessity, and proportionality in the strict sense, as well as by the fundamental right to defense and adversarial proceedings (article 39 ibidem). Under this understanding, precautionary protection is constitutionally mandatory when the substantial legal situations of the parties, be they subjective rights or legitimate interests, may disappear, be damaged, or irremediably harmed, since the adjudicator is called upon to protect and repair them (articles 41 and 49 of the Political Constitution). /VI.- PRECAUTIONARY PROTECTION AND JURISDICTIONAL FUNCTION. In accordance with the constitutional text (article 153 of the Political Constitution), the jurisdictional function, in a material sense, consists of hearing cases, resolving them definitively—with the authority of res judicata, article 42 of the Political Constitution—and executing the resolutions. From this perspective, precautionary protection constitutes an implicit jurisdictional power in the content of numeral 153 of the Political Constitution, necessary to provisionally guarantee the efficacy of the judicial pronouncement contained in the merits judgment and, consequently, its execution. It should be added that precautionary protection has a clear and unequivocal instrumental, accessory, and transitory vocation, characteristics on the basis of which it finds its foundation in the main power of cognition and decision of the jurisdictional body. The jurisdictional body, as one more constituted power, must seek, at all times, an immediate and direct efficacy of the Law of the Constitution, for the case of constitutional precepts 33, 41, 49, and the principles and values supposed and presupposed therein, as it strongly binds them by application of the principle of constitutional supremacy (article 10 of the Political Constitution and article 1 of the Law of Constitutional Jurisdiction), so that even if legal texts do not contemplate certain precautionary measures, they must use their general power of precaution contained in ordinal 153 of the Political Constitution, in order to provide progressive and extensive efficacy to the fundamental right to precautionary protection. Indeed, the judge's interpretation [Name1] of the procedural law [Name1] in accordance with the Law of the Constitution—articles 33, 41, and 49 of the fundamental Charter—requires them to adopt the necessary and suitable precautionary measures to provisionally guarantee the efficacy of the merits judgment [Name1].\"* (In the same sense, one may consult the vote of the Constitutional Chamber no. [Telf6], issued at 16:13 hours on July 5, 2006, regarding an action of unconstitutionality against article 242 of the *Civil Procedure Code* [Name1]. It is also advisable to consult no. 3929-95, at 15:24 hours on July 18, 1995). Hence, as this Court has specified *[Name1] one of the duties of the jurisdictional body is to ensure, as far as possible, the outcome of the trial (art. 98 of the Civil Procedure Code), for which it may determine the provisional measures it considers appropriate, when there is a well-founded fear that a party, before the judgment, may cause the right of the other party a serious and difficult-to-repair injury. To avoid the damage, the judge may authorize or prohibit the practice of certain acts, order the deposit of goods, or impose the granting of a bond (doctrine of numeral 242 ibidem). These faculties have the purpose of preventing, when possible, that a judgment declarative of a right for the administered individual remains at the stage of granting the abstract right and becomes impossible to make concrete, which is the ultimate purpose motivating the filing of claims.\"* (Vote no. 438-02, at 9:30 hours on April 4, 2002). In the case of, as happens in this proceeding, a claim filed by a woman, that power finds protection in norms that form part of the constitutionality parameter. Specifically, in article 16 of the *Convention on the Elimination of All Forms of Discrimination against Women* [Name1], according to which *\"1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: [Name1] [Name1] [Name1] c) The same rights and responsibilities during marriage and at its dissolution; [Name1] [Name1] [Name1] h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.\"* and in numerals 4, subsection g), and 7 of the *Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women*, which contemplate, in their order, the fundamental right to a simple and prompt recourse for the defense of women's rights and the state obligation to eradicate patrimonial violence. Based on that reasoning and on what is provided in numeral 41 of the *Family Code*, it is appropriate to order the immediate annotation of the farm of the Alajuela district, registered real estate folio number xxx, registered in the name of C.C., Sociedad Anónima.-\n\n**XXII.- CONCLUSION** [Name1] By virtue of the considerations set forth, the first-instance ruling must be partially overturned. In its absence, it is appropriate to reject the exceptions of lack of passive standing, lack of right, lack of current interest, and *sine actione agit* raised by the defendants, and to grant the ordinary divorce claim based on the grounds of cruelty, with the consequent liquidation of community property (gananciales), filed by **M.** against **B.**\n\nand **C.C., Sociedad Anónima**[Name1] Consequently, the following must be declared: **a)** dissolved the marital bond existing between Mrs. **[Name2].** and Mr. **[Name4].**[Name1] which shall be recorded, once this judgment becomes final, in the Marriage Registry of the province of Alajuela, in volume xxx, folio xxx, entry xxx; **b)** Mr. **[Name4].** as the guilty spouse and, for that reason, is deprived of the right to receive spousal support (pensión alimentaria) from his wife; **c)** the right of both spouses to participate in fifty percent of the net value of the marital property (bienes gananciales) verified in the other's estate at the time the factual rupture of their bond occurred; that is, in March two thousand four, which includes the property owned by **C. C., Sociedad Anónima**[Name1] The respective liquidation shall be performed in the judgment execution stage; and **d)** as marital property (bienes gananciales) the vehicles with license plates xxx and xxx, registered in the name of Mr. **[Name4].**; the market value of the vehicle EE-twenty thousand five hundred twenty-eight at the time it was transferred to Mr. [Name9]. and the properties of the Alajuela district, real folio registrations xxxx and xxx, without prejudice to others that hold that condition. Additionally, the immediate annotation of the property of the Alajuela district, real folio registration xxx, registered in the name of **C.C., Sociedad Anónima**[Name1] must be ordered. The costs of the proceeding shall be borne by the defendant party and the plaintiff party shall be exempted from paying the costs of the third-party claim (tercería). In all other respects, the appealed ruling must be affirmed.-\n\n**POR TANTO:**\n\nThe lower court's judgment is partially reversed. In its place, the defenses of lack of passive standing, lack of right, lack of current interest, and *sine actione agit* asserted by the defendants are rejected, and the ordinary divorce petition based on the grounds of cruelty (sevicia), with the consequent liquidation of marital property (bienes gananciales), filed by **M.** against **B.** and **C.C., Sociedad Anónima**[Name1] is declared with merit. Consequently, **a)** the marital bond existing between Mrs. **[Name2].** and Mr. **[Name4].**[Name1] is declared dissolved, which shall be recorded, once this judgment becomes final, in the Marriage Registry of the province of Alajuela, in volume xxx, folio xxx, entry xxx; **b)** Mr. **[Name4].** is declared the guilty spouse and, for that reason, is deprived of the right to receive spousal support (pensión alimentaria) from his wife; **c)** both spouses acquire the right to participate in fifty percent of the net value of the marital property (bienes gananciales) verified in the other's estate at the time the factual rupture of their bond occurred; that is, in March two thousand four, which includes the property owned by **C.C., Sociedad Anónima**[Name1] The respective liquidation shall be performed in the judgment execution stage; **d)** without prejudice to other property holding that condition, the vehicles with license plates [Name1] registered in the name of Mr. **[Name4].**; the market value of the vehicle [Name1] at the time it was transferred to Mr. [Name9]; and the properties of the Alajuela district, real folio registrations [Name1], are declared as marital property (bienes gananciales); **e)** the immediate annotation of the property of the Alajuela district, real folio registration [Name1] registered in the name of **C.C., Sociedad Anónima** is ordered; **f)** the costs of the proceeding shall be borne by the defendant party and the plaintiff party is exempted from paying the costs of the third-party claim (tercería).\n\nIn all other respects, the challenged ruling is confirmed.
RANDALL ESQUIVEL QUIRÓS
ROLANDO SOTO CASTRO [Nombre57] [Nombre58]
mzs/omsc