Common Questions About Mexican Family Law
If you are a foreigner and married, living common-law or raising a family in Mexico, you should understand the family laws you may face here. Find out how the laws and procedures may differ from Canadian and American family law.
Here are some of the most common questions foreigners have about family law in Mexico.
How are the family assets divided in Mexico during a divorce?
Typically the division of assets is 50/50, but it is important to note that the judge basis the division only on the assets that were acquired by the couple during the marriage, no matter which person brought home the wage.
Any assets gained during the marriage makeup what is called by Mexican law, Sociedad conyugal and will be the assets which are divided by the judge during a divorce.
Any assets that were acquired before the marriage are not included in the division.
What happens if the couple owns a business in Mexico and they can not continue to operate the business together?
If the business is owned by a company in which the couple are partners, they may proceed according to the statutes and clauses of the company’s liquidation.
One spouse may buy the other out of the company, including their share of assets and company shares. If the couple can not agree on the division of the company a judge shall determine the liquidation of the company.
Does Mexico recognize prenuptial agreements?
Yes, in México a prenuptial agreement is called capitulaciones matrimoniales.
Is there such a thing as Common Law Marriage in Mexico?
Yes, after living together for two years consecutively in Quintana Roo a couple is considered common law known as, concubinato.
If the couple have children together the two years living together is not necessary to be considered common law.
If a child of foreign parents is born in Mexico, does the child automatically have Mexican citizenship?
Yes, no matter what nationality the parents are the child will be a Mexican citizen and may apply to have duel citizenship with the country his/her parents are from.
Divorce and children, how is child custody managed in Mexico?
The parent who takes care of the children will stay in the family home with the children. This does not mean this parent is the sole owner of the property; This is for the sole purpose of the protecting the children.
By law, custody of the children typically goes to the Mother, unless she is proven as a threat to the children or either physically or mentally unfit to raise the children.
The father will have visitation rights at least once a week, and the vacations will be divided equally between the parents.
The father may gain custody if the child is old enough to express his wish to live with the father.
Does Mexico have joint custody laws?
No, only one of the parents may have custody of the child. The other will only have visitation rights.
Is it affordable for parents to use the court system to resolve child custody issues?
Yes. It is relatively inexpensive in México. The court services are free, and the courts have lawyers who advise and assist parents at no cost.
If a Mexican and a foreigner couple are parents but not married, will either one have issues if the other parent passes away?
Once a child is recognized, the marital status of the parents does not affect custody of the children. By law, both parents have all the rights, obligations and responsibilities regardless of their marital status.
In the event a foreign parent passes away, is it possible for a foreign family member to take the child back to their country?
No, the living parent has full custody of the child, a relative may not intervene.
After a divorce is it possible for the foreigner to take the children back to his or her country to live permanently?
As in most countries, you will need permission from the other parent or permission from a judge. It is a crime for one parent to take their child to live in another state or country without the authorization from the other parent or a judge. If convicted the parent may be sentenced two to six years in prison. (art 171 bis código penal de Quintana Roo)
Which documents would the foreign parent need to legally take the child out of the country?
The child’s passport and birth certificate, but if the child is traveling alone they require a document from a notary or a judge with the authorization of the parents according to Article 49 of “Ley de migración.”
In Canada and the US we have child support payment laws, do these exist in Mexico?
Yes. Child support in México is known as pension alimenticia. In the case that the parent does not pay the support voluntarily, the judge may order garnishee of their paycheque. Or seize and sell their property.
Failure to pay child support may result in prison time of one to four years.
(art 167 código penal de Quintana Roo)
The child custody and support laws are very strict in Mexico, although it takes time as there is a lack of family courts and qualified personnel, in Quintana Roo.