The Law is the Law

Today I will talk to you, Sin Recato, about the rights of the mistress. In 1935, in Colombia, concubinage was considered a crime; but today, the other one, the beloved one, or the concubine, has acquired rights that are protected by legal norms.

Rights of mistresses: 

1. Group subject to protection due to domestic violence.
2. In pension matters, the existence of parallel relationships is recognized and the pension is granted in proportion to the time of cohabitation.
3. Children have the same rights under the law, regardless of the type of relationship between their parents.
4. The gender of the partners does not affect the process.

The legal regime has evolved in this matter, to the point that nowadays mistresses can inherit the pension; however, the Law contemplates two types of partnerships:

1. Conjugal partnership: it is the community of the goods constituted between the spouses by marriage.
2. De facto patrimonial partnership: it is the community of goods between permanent partners. It is constituted with the de facto marital union, after two years of cohabitation.

Yadira Alarcón, professor at the Universidad Javeriana, refers to mistresses’ rights and explains: “This type of relationship is not regulated as such in the Law, therefore, for a couple’s relationship to have legal effects, it must fit in one of the previously established family models”.

When two people have a lovers’ relationship; that is, they are not married or live in free union, a commercial partnership may arise, which is called de facto partnership.

The de facto partnership arises when the lovers have a project or a joint venture, but it must meet some requirements: intention to collaborate in a joint venture or project, reciprocal contributions of each member of the project and participation in the profits and losses. If the de facto partnership is commercial, it does not require an affective relationship.

Currently, the Law allows the existence, at the same time, of a conjugal partnership and a free union. It is a quite common situation at this time, where a person without being legally divorced leaves their shared home and begins to live with another partner. From that moment, after two years of cohabitation, arises the de facto marital union.

“This situation requires singularity with the new affective relationship and there must be, clearly, an intention to form a family or life project together. However, this de facto marital union does not always develop into a patrimonial partnership. For this it must last for more than two years and it cannot subsist a previous marital partnership”, explained Margarita Useche, expert in family law of the Universidad Externado.

Once the existence of parallel relationships is recognized, the Law establishes that the pension will be divided proportionally to the years of cohabitation in each of the relationships. For example: Felipe dies and leaves a pension of 8 million pesos. He lived with his wife for 30 years, which gives her the right to keep 6 million pesos; but, since he also had a lover with whom he lived for 10 years, legally, she is entitled to the rest, 2 million pesos. 

The Law has evolved at the pace of changes in society. The Constitutional Court has shown that it cannot remain indifferent to certain cases. In 2013, it said that the different unions cannot be discriminated against and since the spouse has universal rights over the assets, it declared unconstitutional the expression that obliged the marriage to be liquidated for the permanent partner to be able to claim assets.

Since 1996 there has been recognition of extramarital filiation, which allows children out of marriage to be recognized and have the right to inherit. In addition, it was legally established that stepchildren have the same rights as biological children in the recognition that companies give to their employees in health and education.

In 2005, the Supreme Court heard the case of a woman who had an extramarital relationship for 19 years with a man. After this relationship ended, the woman claimed that she formed a de facto partnership with her boyfriend at the time, but her ex-partner said that the assets he had were personal. This brave woman proved that in addition to the household chores, she was involved in his business and they had joint bank accounts.

For its part, the Constitutional Court assures that the survivor’s pension can be divided among the spouses and permanent partners of the contributors, either in proportion to the time of cohabitation with the pensioner or in equal parts.

The judge of the Civil Chamber of the Superior Court of Bogotá, Julia Botero, assures that the laws provide legal stability: “If it is seen that in society many marital unions and unions between cohabitants are being generated, it is necessary to legislate on that. This is a reality that cannot be ignored”.

Traducción del español: Catalina Oviedo Brugés