Should the Third Plenary Session on Civil Matters be applied to compensation claims for marital annulment? Notes for a better understanding of compensation claims in marital matters

Abstract

Peruvian family law allows, in cases of divorce, the ancillary discussion of awarding compensation to a given spouse if certain circumstances are met. Nevertheless, despite the contributions made by case law and legal scholarship, the Supreme Court continues to misinterpret the compensation regimes applicable to divorce. Accordingly, this article seeks to delineate the application of compensation in cases of divorce due to de facto separation (Art. 345-A of the Civil Code) from the compensation established for cases of fault-based divorce (Art. 351 of the same law), which also applies to cases of marriage annulment. Thus, considering the different nature of these two types of divorce -remedy or sanction- that may give rise to compensation, as well as the distinct purposes pursued by these legal mechanisms -redress of damages caused by the culpable spouse or compensation for the economic imbalance suffered by the more disadvantaged spouse -it is concluded that it is necessary to distinguish the applicable rules in each case, in order to grant greater consistency not only to the provisions established by case law in the Third Plenary Session, but also to the norms set forth in our legal system regarding family law.