Inapplicability of the waiver of property

A divorced woman transfer the material goods acquired during marriage and I quit for the benefit of distribution of these, making it a requirement that with them a escrow to guarantee the education of their daughters until they finished their careers.

After that, when treating your ex husbandthat the fiduciary institution transferred the assets to a third party (among which were those that the ex-wife had renounced), she filed a lawsuit in which she alleged the illegality of the resignation letter that she had signed, so that they would be returned to their heritage.

The First Collegiate Court in Civil Matters of the Fourth Circuit in the state of New Liondetermined that the claim of illegality of the early renunciation of marital property assets must be addressed with gender perspective.

And with special care of the context of the facts since if the existence of an unequal power relationship is detected to the detriment of the person who resigns (the woman), the illegality, unconstitutionality and unconventionality of said resignation must be declared, as well as disapplied, with regardless of whether the act of disposition has been assigned the name “transfer” or another equivalent, and whether it appears to be directed to legal purposes.

The above is because every jurisdictional body must administer justice with a gender perspective, which requires reading and interpreting the rules that regulate the institutions taking into account the way in which they affect, in a differentiated manner, those who come to demand justice, since they only This way we can aspire to correctly apply the principles of equality and equity.

“The search for a fair and egalitarian solution in accordance with the context of inequality due to gender conditions, leads to detecting objective elements about the relational context between the parties, derived from their manifestations, as well as from the documents. Furthermore, the principle of autonomy of will is of constitutional rank, but is limited by the free exercise of personality and the rest of the human rights recognized in the Federal Constitution and other norms contained in international instruments that recognize them, approved and ratified by the Mexican State.”

“So it is invalid for individuals, through the execution of a contract or agreement, to stipulate or agree on the absolute restriction or inhibition of the exercise of a human right; even more so in cases in which it is practically impossible to detect the existence of a cause that could validly and reasonably justify it, to the extent that the exercise of the autonomy of the will cannot be a pretext to justify the violation of other fundamental rights.”

Giving rise to the relevant thesis published in the digital gazette of the judicial weekly of the federation this Friday, March 22, 2024, with digital registration: 2028496, under heading: EARLY RESIGNATION OF EXPENSES OF THE CONJUGAL PARTNERSHIP. IT IS APPROPRIATE TO DECLARE ITS ILLEGALITY, UNCONSTITUTIONALITY AND UNCONVENTIONALITY AND NOT APPLY IT, IF AN ASYMMETRIC RELATIONSHIP OF POWER IS NOTICED TO THE DETRIMENT OF THE PERSON WHO RESIGNS (WOMAN), EVEN IF THE ACT HAS BEEN IDENTIFIED AS “TRANSFER” AND APPARENTLY IS DIRECTED FOR LEGAL PURPOSES (LEGISLATION OF THE STATE OF NUEVO LEÓN).

A criterion that ultimately brings us closer to a more equal and equitable delivery of justice, for the benefit of the Rule of Law.

As always, a pleasure to greet you, hoping that these few letters have been to your liking and, above all, useful. Until next time!

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Graduate in law from the Sinaloa Free School of Law, master in constitutional law and amparo and master in commercial and business law, with honorable mention, from the Universidad Panamericana, Guadalajara campus. He graduated with honorable mention from the postgraduate courses in civil and commercial procedural law, law of obligations and contracts and tax law taught by the Universidad Panamericana, Guadalajara campus and is a specialist in the areas of administrative, civil, family, commercial, agrarian, protection. , notarial and corporate. He is studying the AD2 Senior Business Management program at IPADE. He is director of the legal services company LMA, Integradora Legal, based in Culiacán and Mazatlán. Member of the Mexican Bar Association, AC, he was president of the steering committee and founder of the Sinaloa chapter, and currently a member of the national council of said association, he also belongs to the American Bar Association. He is a professor at the Sinaloa Free School of Law, and serves as an advisor to the advisory council of the State Human Rights Commission of the State of Sinaloa. He was secretary of agreements of the First Criminal Court of La Paz and external legal advisor and Interim Secretary of the City Council of the Municipality of Rosario.

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