SUPERIOR COURT OF JUSTICE OF LIBERTY

First Specialized Family Court of Trujillo

PROCEEDINGS : 02450-2015-0-1601-JR-FC-01
SUBJECT : DIVORCE FOR CAUSE
JUDGE : HUBERT EDINSON ASENCIO DIAZ
SPECIALIST : SOLEDAD ARRIAGA HUAMAN
DEFENDANT : WILDER ERICK RABANAL ALVARADO
PUBLIC MINISTRY
DEMANDING : DAYSI LISSLETT TIMANA PALACIOS

JUDGMENT
FIRST FAMILY COURT

RESOLUTION NUMBER TWENTY-FOUR

Trujillo, December twenty-seventh
From two thousand seventeen.-

SEEN: The process followed by Daysi Lisslett Timana Palacios on Divorce for the cause of
Adultery against Wilder Erick Rabanal Alvarado and the Public Ministry, and having realized
this to resolve, this sentence is issued.

BACKGROUND

Daysi Lisslett Timana Palacios files a divorce lawsuit on the grounds of adultery against her
spouse Wilder Erick Rabanal Alvarado, the lawsuit is admitted with resolution No. 01 dated
June 12, 2015, transfer was granted to the defendant and the Public Ministry;
The Public Ministry answers the lawsuit, so with resolution No. 02 dated June 30, 2015, the
lawsuit is considered answered. On July 2, 2015, the defendant Wilder Erick Rabanal Alvarado
filed an objection, so with resolution No. 03 the filed objection was transferred, the plaintiff
Daysi Lisslett Timana Palacios on July 13 acquitted the objection raised, on July 10 August
2015, the defendant Wilder Erick Rabanal Alvarado answers the claim within the established
legal period, so by resolution No. 06 the claim is considered answered, by resolution No. 08 the
process is declared healthy, likewise with resolution No. 09 the The controversial points are
established, the evidence is admitted, on March 16, 2016, the evidence hearing was held where
they decided to vary the claim to that of conventional separation. However, on April 25, 2016,
the plaintiff Daysi Lisslett Timana Palacios requested that the variation of the claim be annulled,
on May 9, 2016, the defendant Wilder Erick Rabanal Alvarado answered the request and
requested that the variation be annulled. raised, so by resolution No. 11 dated May 13, 2016, the
proposed variation is annulled and the processing of the process continues.

With resolution no. ° 09 and a new controversial point is added, on October 20, 2016 the
defendant presents final arguments, with resolution no. 19 it is resolved to integrate resolution
no. 09 with the means of proof of the objection filed, and of the acquittal, Likewise, a date is set
for a special hearing, which was held on May 8, 2017, and was rescheduled for its continuation
on July 7, 2017, in which the reports presented were recognized by the hematologist Víctor
Manuel Lezama. Neyra and the psychologist Janeth Imelda Suárez Pasco; rescheduling its
continuation, due to the non-attendance of the psychiatrist expert Luz Milagros Jara Pereda, so
on September 4, 2017, the continuation of the hearing is held, dispensing with the evidence
consisting of the indications issued by the aforementioned expert for not having attended. to the
hearing despite being duly notified.

BASICS

§ Delimitation of the controversy

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First Specialized Family Court of Trujillo

1°. The plaintiff Daysi Lisslett Timana Palacios, through a document of claim on pages 46 to
57, requests that the dissolution of the marriage bond be declared on the grounds of
adultery against her spouse Wilder Erick Rabanal Alvarado, alleging that: i) she contracted
a civil marriage with the defendant before the municipality provincial of Trujillo on
September 22, 2010, which is proven with the marriage certificate on pages 03, ii) as a
result of that marriage relationship they procreated their youngest son Erick Joaquín
Rabanal Timana who is 06 years old, which is proven with the minor's birth certificate on
page 04. Stating that for two years and eleven months, they lived together, at that time they
led a quiet life, with the plan of working to buy a house; However, for work reasons, the
defendant spouse, as resident doctor of the Argentum SA mining company, spent 23 days
at the mine and 7 days a month at home, until approximately two years ago when the
plaintiff noticed a radical change in his behavior and dedication to the home because on
days off he no longer came home and turned off his cell phone, a fact that worried the
plaintiff because he completely ignored his son and the appellant, which is why they
argued until the situation became unsustainable because he screamed for Everything, he
humiliated her and scolded her for working because she was not taking care of her son,
until on December 22, 2013, she decided to leave the marital home, as proven in the police
report on pages 07, iii) in view of said situation, the appellant She sank into a deep
depression because every conversation with the defendant became depressing when she
heard so much bad vibes towards her person and her life just for requesting alimony for her
son, since the defendant deposited her money whenever he wanted and the defendant
seemed in financial difficulties because she had to cover the support of her son and his
studies, iv) in 2015 in the month of March, through comments from her friends on social
networks, the plaintiff found out that the defendant had a son with another woman, news
from which she recently understood the change in behavior of her spouse towards her and
her son, the physical and psychological violence towards the plaintiff during this time and
her lack of financial contribution; Well, it turns out that during the year 2013 he led a
double life since he had extramarital relations with Mrs. Marcela del Carmen Burgos
Buendía in parallel with his marriage, as a result of said relationship, on March 18, 2014,
the child Erick Marcelo Rabanal Burgos was born, as credited with birth certificate on
pages 05, v) the plaintiff is currently a student of the medical residency at the National
University of Trujillo, she studies and works, activities that generate economic income and
also expenses since she makes tuition and monthly payments, as well as buys books
specialized, he has also hired a domestic worker to take care of his youngest son while he
studies; He also stated that he began a judicial process for maintenance before the Third
Legal Peace Court of Trujillo, Exp. N°758-2015 because the plaintiff refused and forgot
about alimony for his son, vi) with respect to the accessory claim for recognition of
possession and visitation, the defendant stated that she is the one who enjoys possession of
his son Erick Joaquín Rabanal Timana, for which he requests that a visitation regime be
established so that the defendant can visit his son on weekends, from ten in the morning
until five in the afternoon after telephone communication with The appellant also stated
that with respect to the community property, they have not acquired any real estate during
the marriage. Regarding the claim for food in favor of the plaintiff, she alleged that her
health has been damaged and damaged due to the marital breakdown, which is why she
went to the hematologist, Dr. Víctor Lezama Neyra, who indicated clinical tests where she
was diagnosed. Leukopenia, microcytic and hypochromic anemia, as proven by the reports
on pages 17 to 18, the appellant also indicates that she is following psychological and
psychiatric therapies that generate a high monthly cost, making it necessary to cover these
expenses in order to remain healthy and to be able to continue working to ensure a good
future for his son, who was diagnosed with short stature, which is why he had a bone x-ray
which generated expenses, in addition to this he points out that his expenses are increased
since he lives together with his son in a rented apartment, a situation that generates an
expense of three hundred and fifty dollars a month, plus water, electricity, telephone,

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surveillance, etc.; Therefore, it requests that the defendant be ordered to come with a
monthly advance pension of S/.1000.00 soles. He also requests that the judge be able to
grant him a sum of money to compensate for moral damage.

2°. The Public Ministry, on June 25, 2015, answers the lawsuit stating that to establish the
cause of adultery it is necessary to prove the subjective element, sexual copulation with a
person other than the spouse, and another subjective element, the conscious and deliberate
intention to rape. the duty of fidelity. It must also be taken into account that divorce is not
applicable for reasons of adultery, when the spouse caused, forgave or when the expiration
of the action has occurred, that is, the six months after the cause was known by the
offended party or in his/her case has expired. defect five years after its production. The
judge must determine who the aggrieved spouse is for the purposes of compensation for
moral damage that the guilty spouse must pay, if feasible in accordance with article 351 of
the civil code.

3°. The defendant, in writing on pages 124 to 130, has answered the complaint requesting that
the complaint filed by Mrs. Daysi Lisslett Timana Palacios regarding divorce on the
grounds of adultery be declared unfounded in all its aspects, alleging that; i) it is true that
they had a marital home, but it is false that he left the home, since the defendant states that
he left by mutual agreement with the plaintiff, on January 1, 2013, due to the constant
disagreements in which they lived. ; ii) he also states that it is true that they lived together,
but for work reasons he had to leave and go to work at the NATCLAR company, located in
the Quiruvilca mine and later at Minera Argentum SA, in the latter from July 1, 2014 to the
present, with a 14-day by 7-day work system and not as the plaintiff falsely claims; iii) just
as it is also false that he yelled at and humiliated her during his coexistence with the
plaintiff, since the audio transcripts he presents are from dates after their separation; iv) it is
false that the plaintiff was depressed, since she was never seen to be depressed but on the
contrary, she has always been publicly seen very happy at social gatherings, as appears in
the photographs published on social networks; It is also false that she has not provided food
to her son, since this has been demonstrated in the food process Exp. N°758-15, where it is
indicated that he is up to date with his pensions, since he always complied in providing him
with his pension even though he was separated from the plaintiff; v) also states that it is
true that she has a child out of wedlock, who at the date of the answer to the complaint was
one year and four months old, a fact that the plaintiff has been aware of since the child was
7 months old and was not since March 2015, as she falsely states, and it is also false that
she has exercised physical and psychological violence, but on the contrary, she was the one
who harassed and harassed him with constant phone calls during work hours, causing
discomfort in the development of their functions; It is false that he has led a double life,
since he indicates that he separated from the plaintiff on January 1, 2013, the date on which
he left the marital home and his youngest child out of wedlock was born on January 22,
2014, a year later. of having separated from the plaintiff; She also states that the plaintiff is
a former student of the renowned doctor from the National University of Trujillo, since on
July 30, 2015 she completed her studies and the expenses she makes in her books are for
her own benefit; vi) Likewise, regarding the claim of possession and visitation, the
defendant states that he does not oppose the mother's possession of her minor child and in
relation to the visitation regime, he states that it must be by free agreement. , given that her
work system is 14 days per 7 days, vii) Likewise, regarding the claim for food in favor of
the plaintiff, she points out that it is false that the appellant is seriously affected in her
physical and psychological appearance, since in various photographs she she sees him
radiant and happy, sharing with his friends at social gatherings in public places; viii) also
points out that although it is true, the plaintiff lives in a rented home; However, it is her
person who covers part of that rent, since she comes with alimony for her son, in a
percentage of 20% of his monthly remuneration, including all types of income, it is up to

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the plaintiff to cover with her proportion. in its capacity as a mother, such as cheese set in
the Food Process; It also states that the claim by the plaintiff is illogical because she is a
young, professional person with full physical and mental capacity, having currently
obtained the title of doctor specializing in dermatology; Regarding compensation, the
defendant alleges that what the plaintiff states is false, since it is not about any betrayal,
since his relationship with the mother of his minor extramarital son, Erick Marcelo Rabanal
Burgos, was after his separation from the plaintiff; He also points out that during his
coexistence with the plaintiff he never used physical or psychological violence, but there
was a lot of incompatibility of characters and that the plaintiff does not demonstrate moral
damage; On the contrary, she has shown that she is happy and content, having completed
her second specialization studies.

4°. The plaintiff, with a document dated August 26, 2015, pages 151 to 155, acquits the
transfer of the answer to the complaint, alleging that it has been proven that: i) the
defendant is lying because they separated on December 22, 2013, but not on January 1,
2013, as demonstrated by the photos of the 2013 New Year's party that they shared at the
Restaurant Mochica de Moche; as well as conversations via Facebook that they had when
the plaintiff was in Miami from February 27, 2013 onwards, since they communicated
through that means until March 6, 2013 when she returned to Peru, ii) she also attaches an
email where her husband requests a copy of his DNI due to the Pacific Insurance provided
by his employer, email dated November 25, 2013, documents with which he proves his
position and demonstrates that the defendant is lying; Regarding the alimony requested in
his favor, he points out that it is due to his physical and mental health that has been
seriously damaged, which is why since the marital breakup he has gone to the hematologist
and attended psychological and psychiatric therapies that generate a high monthly cost; iii)
Regarding the cause of alleged expiration of the cause of adultery, it states that what was
argued by the defendant is false, who has lied at all times and continues to do so because
the appellant was unaware of the existence of her extramarital child, she only had
indications of alleged infidelity with a woman at work due to comments from mutual
friends; Likewise, with respect to compensation for moral damage, the plaintiff points out
that although it is true that the defendant has presented photos of the appellant at various
events, this is because her psychologist recommended her as part of her reintegration
therapy.

5°. In this sense, the controversy in the present case, as indicated by resolution No. 09, consists
of: i) Determine whether it is appropriate to declare divorce between the plaintiff and the
defendant, based on the cause of adultery; ii) Determine whether it is appropriate to issue a
jurisdictional ruling regarding the possession and visitation regime in favor of the minor
Erick Joaquín Rabanal Timaná, taking into account the moral conditions of habituality,
affection and care; iii) Determine whether it is appropriate to declare the demise of the
community property; iv) Determine whether it is appropriate to declare the cessation of the
maintenance obligation between spouses; v) Determine whether it is appropriate to set as
compensation in favor of the plaintiff Daysi Lisslett Timana Palacios the sum of S/ 100,000
(one hundred thousand soles), and therefore whether it is appropriate to compensate her.

§ From the blemish deduced by the plaintiff.

6°. On July 2, 2015, the defendant filed evidentiary questions deducing an objection against
the evidentiary means offered in the complaint, as Annex 1-I: i) two reports of results
issued by the BERMAN LAB and BIO LAB laboratories; ii) annex 1-J, iii) medical
prescription issued by the hematologist Dr. Víctor Lezama Neyra; Annex 1-K: two
certificates of care, issued by the BIO LAB Clinical Analysis Laboratory; Annex 1-L iv)
Psychological Care report, issued by Psychologist Janeth Suárez Pasco; Annex 1-LL:
Psychological report, issued by the Psychologist Marleny Marchán Coronado and Annex 1-

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M v) medical prescriptions issued by the Psychiatrist Luz M. Jara Pereda, alleging that
these means of proof referred to are ineffective because they do not meet the essential
formality of being issued by doctors and/or laboratories corresponding to the Ministry of
Health, which provide the necessary guarantee necessary for the proof of the facts in a
Judicial process; that the documents in question have been granted for convenience, at the
request and request of the interested party; issued by doctors and private laboratories, so
they become suitable documents; Likewise, it also states that the plaintiff is affiliated with
ESSALUD, whose place of care is at the Moche Assistance Center, where she has all the
medical services; It is also affiliated with EPS RIMAC, where it can be treated at the
“Sánchez Ferrer”, “Peruano Americana”, “San Pablo” clinics, places where it has all the
medical specialties; However, due to its convenience, it goes to private doctors and
laboratories, thus generating unnecessary expenses; Therefore, the evidence at issue lacks
probative effectiveness because it was obtained through favoritism and consequently is not
capable of producing legal effects.

7°. The plaintiff, in a document dated July 13, 2015, on pages 95 to 97, acquits the deletion,
alleging that: i) it lacks legal support since the deletion of documents is only appropriate
for: a) falsehood and b) the absence of an essential formality that For the document, the law
prescribes under sanction of nullity; ii) Likewise, regarding point two, it points out that the
defendant's argument is inconsistent since to prove a state of health, it is enough for an
accredited and skilled professional to issue his or her report to support a state of health; He
also points out that what was argued is false, since the clinical analyzes are true and there is
no convenience in granting them; He also states that it is true that the appellant has social
security but for reasons of waiting time for appointments, her delicate state of health and
the lack of a hematologist at the Moche care center.

§ The divorce
8°. The notion of divorce “comes from the Latin verb divertere , which means each person, for
his or her part, and consists of the definitive and total dissolution of the marital bond,
restoring to the former spouses their capacity to marry.” 1 . At the legislative level, article
348 of the Civil Code prescribes that divorce dissolves the marriage bond and can be
declared only for the reasons provided for in the law.

§ Adultery as grounds for divorce

9°. Adultery, in general terms, is the sexual union of one of the spouses with a third person who
is not their spouse: the extramarital sexual union, which fundamentally violates the duty of
fidelity that the spouses owe each other provided for in article 288 of the Code. Civil, it is
an illicit act and as such requires an objective element (sexual intercourse) and another
subjective element (intentionality); Proof of said extramarital sexual relations is essential,
which is almost always difficult; Because the doctrine and majority jurisprudence accept the
circumstantial evidence that results from serious, precise and consistent presumptions, as
occurs, for example, with the birth certificate of a spouse's extramarital child, conceived and
born within the spouse's marriage. .2

§ Compensation for moral damage

10°.Article 351 of the Civil Code provides that, if the facts that led to the divorce seriously
compromise the legitimate personal interest of the innocent spouse, the judge may grant a
sum of money to compensate for moral damage. Unlike the compensation for property
imbalance provided for in cases of de facto separation, in article 345°-A of the same Civil
Code, the reparation for moral damage is based on the fault or fraud of the spouse

1
VARSI ROSPIGLIOSI, Enrique. Family Law Treaty . Editorial Gaceta Jurídica, Lima, Volume II. 1st Ed. 2011. p. 319.
2
PLACIDO VILCACHAGUA, Alex. Divorce. Legal Gazette. Reprint, 2003 pp. 55 and 56.

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responsible for the cause of divorce and the damage is linked to the harm to the legitimate
interest of the innocent spouse. The doctrine maintains that, Bustamante Oyague, damage to
the legitimate interest must be understood as the damage of the innocent spouse to his or
her extra-patrimonial assets such as honor, prestige, social consideration, etc., especially if
the legitimate personal interest of the spouse has been compromised or seriously affected.
innocent spouse .3

11°. Damage to the person or legitimate personal interest, as indicated in the norm, must be
understood in two dimensions a). Psychosomatic damage, which is that which occurs in the
soma or body (physical damage) or in the psyche (psychological damage) of the person and
b). Damage to the life project, which according to the III Casatorio Plenary, is an impact on
the integral fulfillment of the person. The life project is related to the vocation, aptitudes,
aspirations and potential of the person that allow them to reasonably set expectations and
access them. The organic or anatomical aspect as well as the psychosomatic aspect of the
person constitute an inseparable unit, so any injury to one of them has repercussions,
inexorably and to some extent, on the other.

12°. The III Casatorio Plenary that has been cited above, as well as the majority doctrine, agrees
that moral damage is included within the psychic scope of the person. An injury to personal
“morality” means damage to the person's emotional sphere. Pain, anguish, indignation,
anger, suffering, affliction, restlessness, imbalance, restlessness and other similar
sensations are emotional disturbances .4

13°. Regarding the practical purpose of compensation, the doctrine also maintains that in reality
the amount of compensation does not imply an assessment of the personal damage caused,
said money is not intended to “restore things to their previous state” or to eliminate pain or
the suffering. Money is only instrumental; it allows the victim to find, through their
investment, a certain and even symbolic compensation for the damage. It has the exclusive
purpose of being useful to find a certain type of spiritual satisfaction, a joy or a pleasure,
some pleasant, pleasurable, relaxing sensations. It may be used by the victim to dissipate, if
possible and to some extent, his pain through entertainment or diversions appropriate to his
personality. In situations of great damage, it will serve at least as a sanction for the
aggressor5 .

14°. The substantial difference between the conception of divorce as a sanction, which is
configured through the cause of adultery that the defendant spouse has invoked, and the
divorce remedy, which in turn is configured through the cause of de facto separation, lies in
the fact that The first considers that the failure to comply with the duty of fidelity in its
objective (sexual intercourse) and subjective (intentional) spheres is the cause of the
divorce, while the second understands that the conflict itself is the cause of the divorce,
without being of interest. the causes of this conflict6 .

§ Tenure and Visitation Regime

15°. The Convention on the Rights of the Child has a brief mention on custody in its article 7,
stating that the child will have the right from birth to be cared for by his or her parents and
3
BUSTAMANTE OYAGUE, Emilia . See commentary on article 351 of the Civil Code in: The Commented Civil Code. 2003.
Editorial Gaceta Jurídica, T. II, p. 612 et seq.
4
FERNÁNDEZ SESSAREGO, Carlos In: The Annotated Constitution. 2005. Legal Gazette. VOLUME I, p. 24 et seq.; and, PINTO
OLIVEROS , Sherldine . The Latin American experience of harm to the person, in: Person Right and Freedom, written in tribute to
Professor Carlos Fernández Sessarego. 2009. Motivensa Editor. p. 385.
5
See the comment in the already cited work by Emilia Bustamante Oyague, p. 612 et seq.
6
PLACIDO VILCACHAGUA, Alex. The Grounds for Divorce and separation of bodies in civil jurisprudence. Legal Gazette. 2008.
p. fifteen.

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when they live separately, a decision must be made about the child's place of residence. For
his part, in the national doctrine, Enrique Varsi maintains that possession or custody is the
institution by which the possession that a father has with respect to his children is
legitimized when there is a de facto separation. This would not be a right of the father but
rather a right of the child to have an adequate protector (who meets the requirements) 7 .

16°. Of possession, recognition of possession and the requirements for its judicial declaration.
Article 83 of the Children and Adolescents Code prescribes that the father or mother from
whom their spouse or cohabitant takes their child or wishes to have the right to Custody
and Possession recognized, will file their claim, accompanying the document that identifies
him, the birth certificate and the relevant evidence. In that same sense, article 84 of the
aforementioned Code establishes that the rules for deciding the possession of a minor are
the following: a). The minor must remain with the parent with whom he or she lived the
longest [Coexistence time]; b). The child under three (3) years of age will remain with the
mother [Emotional attachment], c). Possession or custody will be granted to the person
who best guarantees the child's right to maintain contact with the other parent; [suitability] .

17°. It should not be lost sight of that the decision on possession or its judicial recognition,
although it must be subject to the aforementioned criteria, must also and mainly observe the
best interests of the child, since according to article 3, paragraphs 1 and 2 of the Convention
on the Rights of the Child and Article IX of the Preliminary Title of the Children and
Adolescents Code , the Judge, in all measures concerning children, must take into account
that the interest that will be addressed in said controversy will be the Best Interest of the
Child . Child , that is, the Judge, beyond the right or not of the parties or the opinions of the
minors, will base his decision on what is best for the minor, including providing shared,
progressive and conditional possession in favor of both. parents or a legitimate third party,
if that is what is best for the care, education and well-being of the minor.

18°. In the aforementioned sense, article 9 of the Children and Adolescents Code and article 12
of the Convention on the Rights of the Child must be understood, when they prescribe that
the child who is in a position to form his or her own judgment will be guaranteed the right
to express your opinion freely; since an unsystematic or isolated reading of article 85 of the
Children and Adolescents Code, which states without further precision that the judge must
listen to the opinion of the child and take into account that of the adolescent, can lead to the
absurdity of understanding that the Judge must listen even to the newborn. Furthermore, to
determine the ownership of minors, technical reports on the psychological, personal and
family conditions of both the parties and the minors are of utmost importance, as
established in article 175 of the Children and Adolescents Code. provide that “after the
claim has been answered, the Judge, in order to better resolve it, may request from the
technical team a social report regarding the intervening parties and a psychological
evaluation if he considers it necessary.” (The emphasis is ours).

19°. According to national doctrine, the visitation regime is the right that allows permanent
contact and communication between parents and children, achieving affective, emotional
and physical development, as well as the consolidation of the parent-child relationship. 8 , in
comparative doctrine it is preferred to call it the right of personal relationship between
minor children and parents who do not live with them, which includes relatives (extended
family), because when for reasons of family crisis it is not possible to live with both parents,

7
Cf. VARSI. Work cited. T.II p. 274.
8
Cf. VARSI. Work cited. T.III p. 311.

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It is evident that the non-cohabitant replaces the possession of the children (having them
with them) with the right of visitation.9 .

20°. In that sense, this Judge shares the doctrine, mentioned above, according to which the right
of visits is best defined as a natural and personal relationship that the law does not grant but,
due to the importance for the development of personality and well-being of the child and
adolescent, recognizes it, since it is proven that family and emotional relationships
decisively influence the development of personality, favoring its balance, which, although it
has special significance in childhood and youth, does not end when the majority is reached.
of age, but continues to be carried out throughout the person's life; since both, adult and
child, have the right to the development of their personality.

21°. Article 9, paragraph 3) of the Convention on the Rights of the Child expressly refers to the
right of the child to have communication and contact with both parents, by determining that
“The States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relationships and direct contact with both parents on a
regular basis, unless this is contrary to the best interests of the child. Thus in our
legislation; The legal definition of the right of visits is provided for in article 88 and 89 of
the Children and Adolescents Code - Law No. 27337, which prescribes that parents who do
not exercise parental authority or who have been prevented or limited in exercise the right
of visits, you have the right to visit your children, extending this right to relatives up to the
fourth degree of consanguinity; Furthermore, part of this definition is the right of the father
to maintain with his children the personal relationships indicated by the circumstances, as
well as to have them in his company, rights provided for in article 422° and in numeral 5 of
article 423° of the Civil Code. .

§ From the spot

22°. LEDESMA NARVAÉZ points out that for the origin of the objection or oppositions, it
must occur in the following assumptions: a) The existence of a main process, b) the entry of
a means of evidence into the process, c) the entry of a means of evidence. d) file it within
the legal period and by the party to whom it is opposed, e) aim to destroy the effectiveness
of the evidence offered.10Thus, article 300 of the Civil Procedure Code “can be filed
against witnesses and documents. Likewise, opposition can be formulated to the
performance of a party declaration, to an exhibition, to an expert opinion or judicial
inspection. Atypical means of evidence may also be a matter of impeachment and
opposition." Regarding their processing, Article 301 establishes : "The impeachment or
opposition against the evidence is filed within the period established by each procedural
channel, counting from the time the resolution that considers them offered, clearly
specifying the foundations on which they are based and accompanying the respective means
of proof. The acquittal must be done in the same way and within the same period, attaching
the corresponding evidence. The deletion, the opposition or its acquittals that do not comply
with the indicated requirements will be declared inadmissible, granting a period of no more
than three days to correct the defects. These requirements are not required for acquittals
carried out in the summary process. The performance of the evidentiary means is carried
out in the evidentiary hearing, beginning with the performance of the evidentiary issues.
The questioned evidence will be acted upon, without prejudice to its effectiveness being
resolved in the sentence, unless a duly founded and unchallengeable decision is made. ”

9
DÍAZ ALABART, Silvia. The right of personal relationship between the minor and his close relatives in the Spanish Civil Code, In: New Profiles of
Family Law. 2006. Rubinzal-Culzoni Editores, Buenos Aires, p. 363-372.
10
LEDESMA NARVAÉZ, Marianella. Comments on the Civil Procedure Code. Volume I. second edition. Legal Gazette Editorial.
p. 621.

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23°.Thus, jurisprudence has indicated that “The defect is an evidentiary issue that aims to
question the formal defects of the instruments presented, and not the nullity or falsity of the
acts contained therein, which must be asserted in the course of action; and if founded, the
affected document is deleted."11 .

§ On the purpose of the means of evidence.

24°. SENTIS MELENDO maintains “the test does not consist of finding out but rather verifying
and it does not consist of finding out why the judge's function is not to find out, that is the
function of the parties,”12 It is also regulated in article 188 of the Civil Procedure Code "
the purpose of the evidentiary means is to prove the facts presented by the parties, to
produce certainty in the judge regarding the controversial points and to substantiate his
decisions."

§ Analysis of the case.

25°. From the deducted blemish .

25.1 On July 2, 2015, the defendant filed evidentiary questions against the evidentiary
means offered in the lawsuit, as Annex 1-I: two reports of results issued by the
BERMAN LAB and BIO LAB laboratories; annex 1-J: medical prescription issued by
the hematologist Dr. Víctor Lezama Neyra; Annex 1-K: two certificates of care, issued
by the BIO LAB Clinical Analysis Laboratory; Annex 1-L: Psychological Care report,
issued by Psychologist Janeth Suárez Pasco; Annex 1-LL: Psychological report, issued
by the Psychologist Marleny Marchán Coronado and Annex 1-M: medical
prescriptions issued by the Psychiatrist Luz M. Jara Pereda, alleging that these means
of proof referred to are ineffective because they do not meet the essential formality of
being issued by doctors and/or laboratories corresponding to the Ministry of Health,
which provide the necessary guarantee necessary for the proof of the facts in a Judicial
process.

25.2. In this sense, as analyzed, the aforementioned documents refer to the health of the
plaintiff, a fact that in the matter of the present process in which the divorce of the
parties is sought on the grounds of adultery, if protected, said evidentiary means
would become important, since they would allow us, if possible, to quantify the
damage and repair it if established; Therefore, the objection filed against the evidence
in question must be rejected, as it has not been proven that they are false and/or lack
formality that would lead to their nullity.

26°. Marriage and the facts that constitute adultery .

26.1. The plaintiff specifies that she married on September 22, 2010, for two years and
eleven months they lived together according to the marriage certificate on page 03,
they had a son Erick Joaquín Rabanal Timana, currently 06 years old; maintains that
for work reasons, the defendant, as resident doctor of the Argentum SA mining
company, spent 23 days at the mine and 7 days at home, until December 22, 2013, due
to the constant discussions they had about the behavior of the defendant, he decided to
leave the marital home; and that only in the month of March 2015, through comments
from his friends on social networks, he learned that the defendant had extramarital
relations in parallel with his marriage to Marcela del Carmen Burgos Buendía, with
whom he has even fathered a son, accredited with a certificate of birth. birth, which he
registers on March 18, 2014, and that during his marriage he has not acquired assets.

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Cassation No. 810-2004-Arequipa, El Peruano, 30 set. 2005.
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SENTIS MELENDO, Santiago. The proof. The great themes of evidentiary law. Ejea. Buenos Aires. 1978. Q 11.

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 SUPERIOR COURT OF JUSTICE OF LIBERTY
First Specialized Family Court of Trujillo

26.2. The claim for divorce based on the grounds of adultery requires, for the present case,
that the plaintiff spouse has proven the existence of three elements: the objective
element (sexual intercourse) , the subjective element (intentionality). Regarding the
facts stated, although the plaintiff states that they would violate the duty of fidelity
that the spouses owe to each other provided for in article 288 of the Civil Code, thus
for its concretion, realization or configuration of the aforementioned cause, the
presence of not only the presence of the objective element (sexual intercourse), which
would be accredited in the present process with the birth certificate of the extramarital
son Erick Marcelo Rabanal Burgos on page 05, since this would demonstrate that the
defendant would have maintained relations with another person other than your
spouse; but also the presence of the subjective element (intentionality) is required, and
in this regard, although it is true the defendant has maintained in his response to the
claim that since January 1, 2013 he was separated from the appellant, however; The
plaintiff, in her brief on pages 151 to 155, has demonstrated that the defendant is lying
because she indicates that they separated on December 22, 2013, as proven in the
police report on pages 07, but not on January 1, 2013, likewise. Attach photos from
the 2013 New Year's party that they shared at the Restaurant Mochica de Moche; as
well as conversations via Facebook that they had from February 27, 2013 onwards,
she also attaches an email where her husband requests a copy of her DNI due to the
Pacific Insurance that her employer provided her, email dated November 25, 2013 , all
of this would demonstrate that the separation occurred in December 2013, and this
would corroborate that the defendant maintained an adulterous relationship, and thus
whether the defendant's intention to breach his duty of fidelity has been proven .

26.3. Of the expiration of the action.- Although it is true, in accordance with the preceding
basis, the presence of both the objective and subjective elements of the alleged cause
would have been proven; It is clear that from the evidence attached to the document
on pages 124 to 130 by the defendant, he attaches a CD to pages 107 that contains an
audio whose transcription is from pages 108 to 111 that deals with a conversation held
between him and the plaintiff. dated September 20, 2014 , the content of which has
been recognized by the plaintiff herself in a hearing of evidence , where it is recorded
that the plaintiff maintains when speaking with the defendant: “I have told you
nothing more than that you have preferred another child than to be with Joaquín, Am I
lying about that? You don't have a head? You didn't know how to handle that
situation”… “Are you the one who has left the house, are you the one who preferred
to be with a wife and a child” , a means of evidence that shows that the plaintiff was
aware of the existence of her other son since September 2014 , so it can be seen that
her complaint was filed on June 10, 2015; and taking into consideration that according
to the law there is a maximum of 06 months to file adultery, it is concluded that the
plaintiff's right has expired, since she filed it 9 months after the adulterous act was
known, in accordance with the provisions of Article 339 of the Civil Code, which
states: “ The action expires six months after the cause is known to the offended party
and, in any case, five years after it has occurred.” The claim for divorce on the
grounds of divorce must be declared unfounded. Therefore, the claimed claim must be
declared inadmissible.

26.4. Regarding the other claims accessory to the claim.- Article 87 of the Code of Civil
Procedure also establishes that the original objective accumulation can be subordinate,
alternative or accessory; it is accessory when there are several claims, when the main
claim is declared founded, they are also protected. the others. In the present case, the
related main claims for divorce due to de facto separation have already been stated are
inadmissible, so the accessory claims accumulated, in accordance with the principle

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 SUPERIOR COURT OF JUSTICE OF LIBERTY
First Specialized Family Court of Trujillo

according to which the accessory follows the fate of the principal, must follow the fate
of the claims main and for the same reason they must also be declared inadmissible.

27°. The costs and costs . Article 412 of the Civil Procedure Code provides that the imposition
of the sentence on costs and costs does not require a lawsuit and is the responsibility of the
losing party, unless expressly and reasoned judicial declaration of exoneration. In the
present case, it is known that the defendant has formulated its response and corresponding
strike; Likewise, it is also clear that the plaintiff has litigated by paying court fees and
notification fees, but her claim in accordance with the preceding recitals will become
inadmissible; However, both parties had the need to clarify their legal uncertainties,
therefore it is appropriate to exempt the imposition of the sentence from procedural costs
and costs.

For these reasons, this Family Court, with the authority conferred on it by the Organic Law
of the Judiciary and the Political Constitution of Peru.

SOLVE
ONE : Declare UNFOUNDED THE BLAME deduced by the defendant against the documents
on pages 17 to 27.

TWO: Declare INAPPROPRIATE the lawsuit filed by Daysi Lisslett Timana Palacios
regarding divorce on the grounds of ADULTERY against Wilder Erick Rabanal Alvarado ;
Consequently, the accessory claims are also INAPPROPRIATE . Without costs and costs of
the process. TO NOTIFY AND ACOMPLISH .

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