Argentina: Whether adultery is a valid ground for divorce and a criminal offense for which men are prosecuted

According to a source from the Argentine Centre for the Research and Assistance of Women (26 Aug. 1991), Argentine legislation treats adultery differently for men and women. For men, the law recognizes adultery as a relationship in which the man supports a woman other than his wife and has sexual relations with her for a certain period of time. For a woman, a single sexual encounter outside her marriage is considered adultery (Ibid.).

The same source indicated that, regardless of legal provisions, obtaining a divorce could be a lengthy process that may require some two years of court procedures to demonstrate that there is a valid cause for divorce. Only after this process is completed the court may start actual divorce procedures (Ibid.).

According to the Consulate of Argentina in Montreal (26 Aug. 1991), adultery is a valid ground for requesting a divorce before a court. One of the parties alone cannot request a divorce unless there is a compelling cause such as adultery, sexual impotence or family abandonment. For a divorce based on mutual consent, both parties have to convince a judge that there are strong reasons that make cohabitation impossible (Ibid.).

An Argentine lawyer specialized in women's issues in Argentina consulted by the IRBDC explained that divorce can only be obtained by mutual accord before a judge, or by one party if there are legally valid reasons for doing so (causales de divorcio) (26 August 1991). Legally valid reasons that enable a single party to request a divorce include adultery. The source added, however, that a single party may file for divorce after three years of living without the spouse.

The source also explained the other possible way in which a single party may file for divorce: after two years of living without the spouse, a person may request a judge to declare legal separation. This legal separation does not enable the person to marry again, but allows a separation of property between the spouses (Ibid.). Two years after the legal process has been completed and the judge has declared a legal separation (dictado sentencia de separación), one of the parties may file for divorce.

The same source explained that adultery is considered a punishable crime (delito) under Argentine law. However, the law discriminates against women, since a single sexual encounter by a woman is considered adultery under the law. The law defines adultery by a man as an extramarital affair that includes financial support and sexual relations with a woman other than his wife for a period of at least two months (Ibid.).

A case of adultery is seen by a Civil Court if the purpose is to substantiate a claim for divorce, while a Penal Court will see the case if the purpose is to impose a sanction. In either case, the adultery has to be proven to the court (Ibid.). Since these cases are often hard to prove and are usually presented to Civil Courts only for divorce purposes, cases of penal sanctions actually being imposed on men or women for adultery have been extremely rare in the last 40 years (Ibid.).

Further information on the subject could not be found among the sources currently available to the IRBDC.

Bibliography

Consulate of Argentina, Montreal. 26 August 1991. Telephone interview with staff member.

Argentine Centre for the Research and Assistance of Women - ELIAM, Buenos Aires. 26 August 1991. Telephone interview with representative.

Dr. Vain's law office, Buenos Aires. 26 August 1991. Telephone interview with lawyer.