August 11, 2023
The common law marriage or domestic partnership is the legal mechanism regulated by Law 54 of 1996, by which two people constitute a permanent singular life partnership, without being married.
Law 54 of 1996 defines the existence of common law marriages in Colombia and the patrimonial regime applicable to them.
Three (3) elements must be met in order to form a common-law marriage. These have been developed through the Jurisprudence of the Supreme Court of Justice, the Constitutional Court, among other sources.
The three requirements for the existence of a common-law marriage or domestic partnership are:
A sustained, voluntary partnership where individuals work together, combining their actions and decisions freely and spontaneously, to achieve a shared state of well-being or success.
In other words, this is a long-term agreement where people willingly come together and collaborate. They freely make choices and decisions, working hand-in-hand without any force. Their ultimate goal is to create a better or more successful situation for everyone involved.
The element of singularity within the common-law marriage or domestic partnership implies that between the permanent partners there is no alternate commitment with third parties and that they are dedicated to the formed home.
As established by the Merriam-Webster dictionary, permanence is: "the duration, signature, constancy, perseverance, stability, immutability" that is expected from the cohabitation agreement that originates between the permanent partners. In this sense, sporadic encounters or stays that do not form part of a community of life are excluded.
Initially, Law 54 of 1990 included the definition of common-law marriage the relationship between a man and a woman exclusively. However, Colombia's Constitutional Court determined through its decision C-057 of 2007 that the regime established in said law should be extended to same-sex couples, protecting the rights to equality, free development of personality and non-discrimination.
Therefore, Law 54 of 1990, as amended by Law 979 of 2005, was declared constitutional, on the understanding that the legal protection regime established therein is extensive to same-sex couples in a common-law marriage.
The declaration of a common-law marriage grants legal recognition of the rights, guarantees, and duties attributed by law and jurisprudence to the couple living in a permanent and singular community of life.
In this sense, the declaration will be the manifestation made by the couple before a judge or notary of the existence of said union on their permanent and free cohabitation for at least 2 years.
The declaration of the common-law marriage or domestic partnership may be requested by the permanent partners at any time. However, the patrimonial partnership will only be born to legal life and, therefore, will have legal effects after two (2) years of mutual cohabitation counted from the date on which such union was declared.
The declaration of the common-law marriage has several benefits for the permanent partners, such as the conformation of the patrimonial society. Likewise, the following benefits are granted to the couple:
The permanent partners who wish to declare the common-law marriage or domestic partnership must go to the following entities, depending on each case:
As mentioned above, depending on each case and before whom the permanent partners go to carry out the legal process of declaring the common-law marriage, this will be:
The permanent partners who by permanent agreement want to declare the union before a notary must comply with the following requirements:
On the other hand, when the declaration must be made before the judge, the general requirements of the lawsuit must be complied with:
During the legal process for the declaration of the common-law marriage, it will be essential to have the advice of lawyers specialized in Family Law. With the assistance of specialized lawyers, the process that can be advanced before a notary, judge, and conciliation center will be carried out according to the laws that regulate it and presented within the legal terms.
At AGT Attorneys, we have a practice area specialized in Family Law with experience in procedures such as the declaration of the common-law marriage, marriage, permission for minors to leave the country, among others.
Contact us today and find out how we can assist you in your family law legal proceedings to make informed and confident decisions.Facebook AGT Attorneys and Twitter @AttorneysAGT
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