SCJ changes criterion on the imprescriptibility of the action in matrimonial partition in registered properties 

The Supreme Court of Justice has assumed as a jurisprudential position that, if after the publication of the divorce decree one of the parties does not file for partition within the period of two years established in article 815 of the Civil Code, it is presumed that the partition is produced in favor of the one who keeps the assets in possession, on the basis of abandonment or unequivocal waiver of his rights with respect to the community assets.  

Likewise, the aforementioned sentence retained that no one can be forced to remain in a state of indivision beyond what the law conceives and allows. 

By Ruling No. SCJ-SR-23-0001, dated February 22, 2023, the Chambers Together held that not exercising the right of action in partition implies a sanction to its holder, which consists of the loss of the opportunity to claim its right before the competent authorities. 

"In effect, these Assembled Chambers, by virtue of maintaining the unity of the national jurisprudence, abandon the criterion they had hitherto maintained on the non-application of the extinctive prescription contemplated by the referred Article 815 of the Civil Code, to adopt the reasoning set forth by the First Chamber of this Supreme Court of Justice, through judgment 2170/2021, in the sense of admitting that the referred prescription also applies to registered real estate, as being more adequate with the correct interpretation of the law that governs the matter." 

In this regard, the Chambers Assembled hereby annul the civil judgment No. 449-2018-SSEN-00154, issued by the Civil and Commercial Chamber of the Court of Appeals of the Judicial Department of San Francisco de Macoris, on July 10, 2018, and consequently, returns the case and the parties to the state in which they were before the said judgment was issued, and to make right, sends them before the Civil and Commercial Chamber of the Court of Appeals of the Judicial Department of La Vega, in the same attributions. 

The decision is signed by justices Luis Henry Molina Peña (presiding), Pilar Jiménez Ortiz, Francisco A. Jerez Mena, Manuel Alexis Read Ortiz, Nancy I. Salcedo Fernández, Justiniano Montero Montero, Rafael Vásquez Goico, Napoleón R. Estévez Lavandier, Samuel A. Arias Arzeno, María G. Garabito Ramírez, Moisés A. Ferrer Landrón and Francisco A. Ortega Polanco. 

The judgment, which involved a lawsuit in the partition of assets between ex-spouses, was issued with the dissenting vote of justices Justiniano Montero Montero, Moisés Ferrer Landrón and Francisco Ortega Polanco.  

The dissenting position argues that Article 815 of the Civil Code has no application in matters of registered real estate where the institution of imprescriptibility prevails as a rule, under the law of real estate registration, which conceives as a principle that possession in no way generates rights, allowing the loss of a registered right under these conditions is contrary to the constitutional nature that protects its hard core, under Article 51 of the Constitution, which would be giving way to a situation of attack to legal certainty that the Dominican State itself is its guarantor.  

Likewise, the minority position maintains that this is an open violation that contravenes more than a century of legislative and jurisprudential evolution in favor of the fact that registered real estate rights do not prescribe, which extends undeniably to the partition action whose existence dates back to 1920, when Executive Order 511 of the aforementioned year was sanctioned. In this sense, to conceive this notion of prescription undoubtedly implies giving way to the loss of a right institutionally protected by the normative order. 

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