Diferencias entre el matrimonio y la unión marital de hecho

Differences between marriage and common-law marriage

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THE MARRIAGE

 

The institution of marriage is enshrined in Article 113 of the Colombian Civil Code, which states that “Marriage is a solemn contract by which a man and a woman are united for the purpose of living together, procreating and helping each other. This contract is only perfected, when the consent is expressed fulfilling the solemnities of law, before the authorized officials such as the judges of the republic, the notaries and some religious authorities established in decree 354 of1998.

 

Marriage generates obligations the obligations of cohabitation, fidelity, help and relief. The breach of any of these obligations by one of the parties can be considered a casual divorce.

 

Between the legally married spouses a conjugal society arises to which the following goods enter:

 

  • The salaries that each one obtains.
  • The fruits, pensions, interests and profits.
  • The money that enters to the society thanks to a sale or a business that has been carried out during the same one.
  • Goods and rights acquired for onerous title (that is to say the opposite for free).
  • The real estate that enters during the society to onerous title.

 

Assets that by law do not enter the marital partnership are:

 

  • Inheritances and legacies.
  • The property that is duly subrogated to another property belonging to one of the spouses.
  • The things bought with money of one of the spouses, destined to it in the matrimonial capitulations or in a donation by cause of marriage.
  • All the material increases of any of the real estate by reason of flood, building, plantation or any other cause.
  • The species that one of the spouses possessed as a lord even though the prescription or transaction with which he or she made them truly his or her own is completed or verified during the partnership.
  • The goods that were possessed before the constitution of the society by a vicious title, but whose vice has been purged during the society by the ratification, or by another legal remedy.
  • The goods that return to one of the spouses because of the nullity or resolution of a contract, or because a donation has been revoked.
  • The litigious goods and that during the society one of the spouses has acquired the pacific possession.
  • The right of usufruct that is consolidated with the property that belongs to the same spouse: the fruits will only belong to the conjugal society.
  • What is paid to either spouse for credit capital constituted before the marriage, will belong to the creditor spouse.
  • The interest earned by one of the spouses before the marriage, and paid afterwards.

It is important to emphasize that at the moment of the liquidation of the marital company, the assets that are part of it will be distributed and those that are not, will remain in head of the spouse who has the property of the same ones.

 

DE FACTO MARITAL UNION

 

The Marital Union of Fact is an institution different from marriage that has personal and patrimonial effects for the permanent partners. If a couple, although not married, form a permanent and unique community of life, for a period of more than 2 years it will be presumed that a de facto marital partnership exists between the permanent partners.

 

The partnership is constituted after two years of uninterrupted cohabitation, declared by means of a public deed, a conciliation act or by a judicial sentence and it is constituted by all the assets and liabilities acquired from the moment in which the cohabitation started, with the exception of the assets excluded by article 4 of the law 54 of 1990 that indicates that the assets that are not part of the assets of the partnership are:

 

  • Those acquired by virtue of donation, inheritance or legacy.
  • The goods that had been acquired before initiating the marital union in fact, but they will be it the revenues, income, fruits or bigger value that produce these goods during the marital union in fact.

 

It is important to keep in mind that the only impediment for the declaration of the marital union and the patrimonial society is that one of the permanent partners has a previous marital relationship, because it is required that this one is liquidated in order not to incur in a confusion of patrimonies of previous relationships.

 

In the case of the application for liquidation and dissolution of the partnership between permanent partners, it must be made within one (1) year after the physical and definitive separation, the marriage with third parties or the death of one or more of the partners.

 

From the above we can conclude the following:

  MARRIAGE DE FACTO MARITAL UNION
CONSTITUTION  

 

It begins to produce personal effects from the moment two people decide to live in a de facto marital union;
PERSONAL EFFECTS Personal effects are: cohabitation, fidelity, help and relief; these effects can be considered as rights and obligations for both parties. Personal effects are fidelity, life in common, mutual help and relief.
NON-COMPLIANCE OF THE EFFECTS Failure to comply with these obligations is sanctioned, as it gives way to the grounds for divorce.

 

Failure to comply with any of these effects does not carry a civil penalty, which gives rise to lack of protection.

 

MARITAL STATUS Married Permanent Partner
DISSOLUTION The dissolution of the marriage is given by death of one or both spouses, or the agreement of both spouses elevated to public writing, the judicial separation of bodies, by sentence of separation of goods, and declaration of nullity of marriage.

 

The dissolution of the de facto patrimonial society occurs by common agreement between the permanent partners before a notary, conciliation center or family judge, and by the death of one or both partners.