La unión marital de hecho como fuente de un nuevo estado civil en Colombia a partir de la ley 54 de 1990

Abstract

According to studies conducted in Profamilia, de Facto unions or common-law marriages have acquired importance in the last 20 years; thus, a trend to form a family via this judicial institution has been established leaving the Institution of Marriage in second place. Studying the prevailing legislature, including jurisprudential advances, we fear to say that this institution must be considered a source of marital status in Colombia, for there is no clear expressed definition of what marital status is considered to be in compliance to Colombian laws. Pursuant to article 1 of decree 1260 of 1970, marital status must be deemed as that judicial situation that an individual has before society and family. This judicial situation generates rights and duties; it must be enforcible, inprescriptible and indivisible. Hence, being part of a “de facto” marital union must be considered a source of marital status, for it is true that no one may have more than one marital status; it is also true that in the case of permanent partners who are married, their source of marital status is different from the source of a de facto marital union. Therefore, a child born out of wedlock may have civil status, like, a child born to a marriage or born out of a common-law marriage taking into account that the sources of the civil statuses are different; in other words, in the first case, relationship; in the second case, marriage and in the third a common-law marriage. Furthermore, it is deemed enforcible for marital status can be changed at the parties’ will; in other words, in marriage, there is a change of marital status from single to married depending the parties’ will and likewise, when a couple agrees to co-habit forming a common-law marriage or a de facto marital union. Moreover, every marital status can be proved by notorious possession and it is inprescriptible in as much as that a de facto marital union just as marriage may be recorded in the vital statistics miscellaneous register and the norms that rule it are acquired rights and they are part of public order.