In a dissenting opinion, the judge argued that the two-year period stipulated in Article 815 of the Civil Code should not extinguish property rights over registered real estate
SANTO DOMINGO – Can a person lose their rights to a house, apartment, or land registered in their name for failing to claim their share within two years of a divorce? This is one of the main legal questions analyzed in the position defended by Justiniano Montero Montero, elected on November 2, 2026, as president of the Supreme Court of Justice (SCJ).
During his evaluation before the National Council of the Judiciary (CNM), the judge highlighted, among his dissenting opinions, a legal position related to Article 815 of the Dominican Civil Code and the principle of the imprescriptibility of registered real estate rights. This argument was part of the aspects of his legal career that he presented to the members of the body that unanimously elected him.
The discussion starts from an apparent contradiction between two legal provisions: on the one hand, article 815 of the Civil Code, which establishes a deadline to claim the division of marital property after divorce; and, on the other hand, Law No. 108-05 on Real Estate Registration, which recognizes that duly registered real estate rights are imprescriptible.
What does Article 815 of the Civil Code establish regarding the division of property?
Article 815 establishes that no one can be forced to remain in a state of indivision, that is, any co-owner can request the division of the property that he/she shares with another person.
However, the provision includes a special rule for former spouses: the action for partition of the marital property must be exercised within two years of the publication of the divorce decree.
If that period elapses without the claim being filed, the rule establishes a presumption of partition in favor of whoever retains the assets in their possession.
In simple terms, this provision aims to prevent marital property from remaining undivided indefinitely after the dissolution of the marriage. However, its application presents difficulties when the assets involved are duly registered real estate.
Why does Article 815 conflict with Law 108-05?
The controversy arises when the assets to be divided are land, houses, apartments or other properties covered by title certificates.
In this context, Principle IV of Law No. 108-05 on Real Estate Registration establishes that all rights registered in accordance with that legislation are imprescriptible and have the protection and guarantee of the State.
This means that a duly registered real estate right should not disappear simply due to the passage of time or possession by another person.
Therefore, a fundamental legal question arises: can the two-year period established in article 815 extinguish the right of a former spouse over a registered property, when real estate legislation provides that such rights are imprescriptible?
Precisely, this contradiction between both provisions constitutes the core of the interpretation that Montero defended in his dissenting vote.
What did Justiniano Montero defend in his dissenting vote?
Montero's position was set out in judgment no. SCJ-SR-23-0001, dated February 22, 2023, related to a lawsuit for the division of property between ex-spouses.
In that decision, the majority of the Plenary Sessions of the Supreme Court of Justice considered that the two-year period established in article 815 should also apply to registered properties.
However, Montero, along with magistrates Moisés Ferrer Landrón and Francisco Ortega Polanco, issued a dissenting opinion in which he argued a different interpretation. His reasoning was based primarily on four arguments:
- The prevalence of Law 108-05: because it is a special legislation on registered real estate, its provisions must prevail over the general rules of the Civil Code when there is a normative contradiction.
- The imprescriptibility of registered rights: the lack of a partition claim within two years should not cause the loss of a duly registered property right.
- Constitutional protection of property: Article 51 of the Constitution guarantees the right to property and obliges the State to protect it.
- Legal certainty: allowing a person to lose their right to a registered property simply due to the passage of time could affect the stability and reliability of the real estate registration system.
In essence, Montero argued that the period provided for in article 815 should not be used to extinguish co-ownership rights over registered properties.
How did jurisprudence evolve after that dissenting vote?
The importance of this approach also lies in the fact that the subsequent jurisprudential debate evolved towards an interpretation consistent with the arguments that Montero had defended in 2023.
Indeed, on March 31, 2026, the First Chamber of the Supreme Court of Justice issued the ruling SCJ-PS-26-0530, through which it modified the previous criterion and recognized that the action in partition of registered real estate of the marital community is imprescriptible.
Subsequently, the Constitutional Court, through ruling TC/0637/26, of July 27, 2026, reaffirmed the protection of these rights and established a constitutional precedent on the matter.
Thus, the interpretation defended by Montero in his dissenting opinion found support in subsequent judicial decisions. However, it is important to clarify that the scope of this protection refers to rights over properties that maintain their registered status and does not imply that any real estate claim is automatically imprescriptible.
What does this interpretation mean for divorced people?
Beyond the legal debate, this discussion has direct consequences for people who divorce and retain property acquired during the marriage.
For example, if a couple divorces and has a home registered as part of their marital property, one of the ex-spouses could continue to occupy it for years without the division having been formally carried out.
Under the previous interpretation by the majority of the Supreme Court, the passage of two years could result in the loss of the possibility of claiming partition.
However, under the criterion that subsequently prevailed, the right to the registered property does not disappear for that reason alone.
This allows the ex-spouse who does not occupy the property to legally claim the corresponding division, even if more than two years have passed since the divorce, provided that the registered rights that underpin their claim remain in force.
Why is Justiniano Montero's legal position relevant?
In short, Montero's approach highlights the importance of harmonizing the provisions of the Civil Code with special real estate legislation and the constitutional guarantees of the right to property.
His dissenting vote in 2023 constitutes a relevant precedent within the discussion on the imprescriptibility of registered real estate rights, especially in the processes of partition of assets between ex-spouses.
The fundamental issue is that the passage of time should not, in itself, become a mechanism for disregarding a property right that is protected by registration. This interpretation, therefore, seeks to preserve legal certainty and guarantee that the rights of registered property owners receive the protection established by Dominican law.
Recommended readings:
- The requirements and fees of the Property Registry for replacing lost or destroyed creditor certifications
- Transfer of real estate through sale: requirements, costs and steps to register property in the Dominican Republic
- How to request the registration of a seizure or immobilization of a property in the Dominican Republic?
