COHABITATION (COMMON LAW RELATIONSHIP)

Esteban Gil
Family Law 24.11.2017

The idea of living as a couple comes prior to the institution of marriage. However, despite being an older figure than marriage itself, the need arose for the state to value it, and set limits at the same time, since principle led to considered that the correct way to live together as a couple was through the marriage. Even so, history has shown that couples have resisted this general model and maintain the interest of living together in a less formal manner.

Napoleon considered that these people were living on the fringes of the law, and therefore did not deserve law´s intervention and regulation; thus, these types of relationships remained invisible under the fallacy that what is not regulated by the law does not exist. Thus, social conception held that those who were not married were sinful or evil.

Nevertheless, a Human Rights perspective shows that there is a fair negative to each right. For example: the right to marry and the right to not marry.

Now-a-days the acknowledgement of common law relationships is a reality in our modern law, so long as such a figure is properly contained in our Family Code.

“Article 242: The public, notorious, unique and stable common law relationship, lasting more than three years, between a man and a woman that possess legal capacity to marry, will have all the patrimonial effects inherent to legally formalized marriage, upon termination due to any cause.”

This description clearly presents the existence of requisites in order to establish this new relationship model; as such it must be

In addition, for this figure to be recognized as such, it must occur between a man and a woman, and possess all the capacities for a marriage. From the reading above it follows that a couple of the same sex could not consolidate a common law relationship, or in a similar manner, nor could clandestine relationships where one of the two participants is not single.

Marriage is a civil status; the married person demonstrates their status by means of a civil certification, so the person is registered in a civil manner. The common law relationship is a condition; it is not a civil status, because the Registry does not have it registered as a civil status.

Two questions arise:

¿How, then, is it demonstrated?

¿How can the State distinguish if coexistence/cohabitation exists?

The answer tells us that only for inheritance purposes; on the other hand, the legislator held it had to be public, notorious, stable, male-female, for over three years.

Additionally, and not of less importance, in order to benefit from the effects that are to be derived from this figure, it must be legally acknowledged:

“Article 243: For the effects indicated in the previous article, any of the partners or their heirs may request the Court to recognize the cohabitation (common law relationship). This action will be processed by means of the abbreviated process, regulated by the Civil Procedure Code, and will expire two years after the rupture of cohabitation or death of the actor. “

It should be noted that the Family Code introduces the seventh title, article 242 of the Family Code, six years after the Civil Code already talked about cohabitation. However, Article 242 clearly states

“It will have all the patrimonial effects of a marriage.”

And Article 243 insists

“for the purposes indicated in the previous article”.

We can say that at the beginning it was difficult to imagine the legalization of any union that was not provided by the celebration of marriage, however, with the passage of time, we had to start looking for ways to recognize other types of relationships, and such is the case of the common law relationships. When this new model of coexistence was legalized, equality among people was sought, bearing in mind that it was unfair that the same effects of marriage were not available; nonetheless, this was always under the protection of the law and in compliance with the fundamental requirements for its legalization.

It is worth remembering, in honor to the truth, that it was not Family Law that motivated the first order of legalization of common law relations, but rather the Civil Code; since approval of the Convention on the Elimination of All Forms of Discrimination against Women (1984), in such a way that women in Costa Rican society, as bearers of rights, could not be discriminated against due to their condition or civil status; the Law on the Promotion of Social Equality of Women was therefore issued in order to develop the principles of the mentioned Convention and avoid discrimination within our country.

From this moment onwards, the Civil Code allows the possibility of inheriting in the presence of a common law relationship, between people of different sex, as long as the other conditions required by the law for this model of relationship are fulfilled.

The aforementioned directly motivated Family legislation initiatives to grant the recognition of patrimonial effects in common law relationships and thus pave the way for the recognition of such unions, along with requesting the recognition of effects related to inheritance. (Abbreviated process, it will expire in two years from the rupture or death of the actor, Civil Procedure Code).

With regards to personal effects, the Constitutional Chamber made it clear that common law couples may adopt, in the same way, if they comply with the provisions of family legislation, and when either of the partners already has children from a previous relationship, their current partner may adopt the other’s children.