PR 03435.238 Mexico

A. PR 79-004 David M~ — Social Security No. ~ — Vacation of Divorce Decree - Mexico

DATE: February 1, 1979


Under the laws of Guanajuato, Mexico, during the period from 1970 to 1973, the Court of Appeals had the jurisdiction to re- verse or revoke an earlier divorce decree by a lower Mexican court. (M~ , David — ~— GO (A~) to BRSI 2/1/79)


In connection with a claim for wife's insurance benefits under title II of the Social Security Act, you have asked us a question concerning the legal effect of a decision issued by an appellate court in Guanajuato, Mexico, reversing or revoking an earlier divorce decree issued by a lower Mexican court in Guanajuato, Mexico.

Background Facts of the Claim

The wage earner, David, married a woman named Ramona on December 29, 1957, in Salvatierra, Guanajuato, Mexico. About 13 years later, David filed divorce proceedings against his wife before the court of First Instance of the City of Salvatierra. This court granted the petition and issued a divorce decree on May 28, 1970. Ramona appealed this decision before the Court of Appeals. On October l4, 1970, this court upheld the judgment of the lower court. Ramona appealed again. This time, she filed Amparo proceedings before the Third Civil Chamber of the Supreme Court of Mexico. After hearing the case, the court found that David had failed to produce sufficient evidence to prove his action and, consequently, that the Court of  First Instance was in error in granting the divorce petition. This judgment by the Supreme Court was forwarded to the Court of Appeals for execution. The Court of Appeals issued its judgment on November 3, 1973, which reproduced the judgment of the Supreme Court. Thus, the previous judgment of the Court of First Instance of Salvatierra was reversed.

On June 15, 1971, David married another woman in the State of Illinois. This woman is presently entitled to wife's benefits on David's account.

Ramona's first claim for wife's benefits was denied because of the existence of the divorce decree. Ramona has filed her claim again and, this time, she has submitted the decision of the Appellate Court reversing the divorce decree on judicial error.

The Social Security Administration (SSA) contacted the American Consulate General in Mexico to determine whether the court in question had appellate jurisdiction over the court which granted the divorce. That consulate answered SSA's inquiry by indicating that the document was genuine. Further, the social security representative in Mexico obtained information from a judge in Salvatierra which indicated that the court issuing the revocation decree had the jurisdiction to do so and that the revocation decree had the effect of annulling the divorce decree.

Issue of the Claim:

SSA may consider Ramona to be David's wife for purposes of wife's benefits under title II of the Social Security Act, if the courts of the State of David's domicile (at the time Ramona filed her application for social security benefits) would find that Ramona and David were validly married at the time of filing that application. Here, David was domiciled in Illinois. Under Illinois law, Illinois gives the same effect to a decree as does Mexico. Therefore, the issue before us involves the legal effect of the Appellate Court's decision on the divorced decree. (A copy of the Regional Attorney opinion on the effect in Illinois of a Mexican Appellate Court reversal of a Mexican lower court's divorce decree is attached.)

Resolution of the Issue:

We asked the law library of the Library of Congress for assistance and received a report on the jurisdiction of the Court of Appeals and of the Supreme Court. A summary of this report is set forth below:

Jurisdiction of Court of Appeals. Under the laws of Guanajuato, Mexico in effect during the appeal process, sections 236 through 238 of the Code of Civil Procedure of Guanajuato (in force since April l, 1934) governed the jurisdiction of the Court of Appeals. As translated, these sections read as follows:

“Art. 236. The purpose of the appeals proceedings is for the superior court to confirm, reverse, or modify the judgment or court order issued in first instance, with regard to those issues that cause the alleged injuries.

“Art. 237. An appeal may be admitted not suspending the execution of the judgment (efecto devolutivo) or suspending its execution (efecto suspensivo).

“Art. 238. An appeal that is admitted suspending the execution (of the judgment) suspends, of course, the execution of said judgment or court order, until (the new judgment) becomes final ....”

In other words, by virtue of the first appeal filed by the wife before the Court of Appeals, admitted under the provision of article 238 above, the effects of the divorce decree issued by the Court of First Instance were suspended; thus the divorce decree did not acquire the status of a final divorce decree.

Jurisdiction of the Supreme Court. The jurisdiction of the Supreme Court to hear the case on amparo proceedings is authorized by article 158.

“Art.158. Direct “amparo proceedings” shall be filed in sole instance before the Supreme Court of Justice or before the Collegiate Circuit Tribunals as the case may be, as provided in Sections V and VI of Article 107 of the Constitution and related provisions contained in the Organic Law of the Judicial Power of the Federation. (The recourse of amparo) may be filed against final judgments issued by judicial or administrative courts for the violation of the laws on proceedings committed while the case is before the court, provided (that these violations) affect the (rights of the) complaining party and transcend to the result of the decision ....”

Other pertinent provisions of the law on amparo applicable to this case are found in the following articles:

“Art. 170. In amparo proceedings of the competence of the Supreme Court of Justice or of the Collegiate Circuit Tribunals, in criminal, civil, administrative, or labor matters, the responsible authority shall order the suspension of the execution of the judgment appealed ....”

“Art. 80. The object of the judgment granting the amparo is to restore the injured party in the full enjoyment of his or her individual right that was violated, re-establishing the status it had before the violation was committed ....”

The report concludes that the divorce decree issued by the Court of First Instance of Salvatierra never became final and executable. It was reversed by the decision issued on amparo by the Supreme Court. The reversing decision was executed by the Court of Appeals in its decision of November 3, 1973, which in turn also reversed the one issued by the Court of First Instance on May 28, 1970, granting the divorce petition. Thus, the reversing decision was the one that became final and executable. During these proceedings, the decree dissolving the marriage bonds never became final and executable. Thus, the parties were never divorced.

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PR 03435.238 - Mexico - 03/14/2008
Batch run: 11/29/2012