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Modern Family – an overview of family law in Colombia

Sarah Lucy Cooper, barrister of Thomas More Chambers, and Jairo Rivera Sierra, Abogado Colombiano, provide an introduction to family law in Colombia which has recently aroused attention in the UK media following the recognition of a 'polyamorous family'.

Sarah Lucy Cooper, barrister, Thomas More Chambers

Sarah Lucy Cooper, barrister, Thomas More Chambers and Jairo Rivera Sierra, Abogado Colombiano

Many readers will only know Colombia from Sofia Vergara, the star of Modern Family or from lurid news about drug traffickers. In fact it is a highly developed country with a population of 48 million and very high levels of literacy. The country produces oil, gas, gold, coal, agricultural products, including bananas, flowers and coffee, as well as being a manufacturing base for computer components, fabric and sweets. Average GDP is $13,400 per person and Colombia has the fifty-third largest economy worldwide. Over $1.5 billion in exports from Colombia reach our shores.

President Santos has won the 2016 Nobel Peace Prize for his efforts to end the long running civil war and he has just made a State Visit to the UK. The Colombian Embassy estimates that there are around 150,000 Colombians living and working in the UK – a community which every day grows stronger socially and economically. Both the Law Society and the Bar Council have been actively promoting links with Colombia and the Bar Council has identified Colombia as a key market for 2018 and intends to organise a trade visit. Business with the UK is booming and the flow of people and families between the two countries has grown exponentially as a result. Family lawyers can be sure that they will encounter situations involving Colombians as trade and commerce increases. 

Colombian family law is based around the 1991 Constitution, the Civil Code and various pieces of legislation, in a similar way to many other civil systems. Whilst there is no doubting the influence of the Napoleonic Code, Colombia was the first state in Latin America to gain its independence from the Spanish in 1810 – now some 256 years ago –so its laws are very much its own. Many lawyers would no doubt be surprised to find out how liberal many of the family laws are – from surrogacy to gay marriage (even involving more than two partners, as to which see below) to euthanasia. Interestingly Colombian lawmakers have looked to the UK over the years in order to inform their own laws, in particular in relation to the complex issues surrounding reproduction.

Colombia has signed up to most of the major international conventions in relation to children including the 1980 Hague Convention. There are in fact no regional agreements including Colombia which would affect its family law. It is worth noting that there are areas of Colombia in which there are indigenous reservations in which their own law would take precedence – however, the details of the family laws in those areas are entirely outside the scope of this article. In relation to children, both parents have equal rights, regardless of whether they are married or not. Jurisdiction in international cases relies on the physical presence of the child, regardless of whether the child is resident in Colombia. This could result in the Colombian courts taking jurisdiction in cases where a child is only on holiday there.

In relation to divorce, the jurisdictional criteria are also very wide and could cover an English couple who had lived in Colombia, were no longer living there but retained a right to remain in Colombia. As in this jurisdiction, the right to bring proceedings to deal with the finances follows automatically from the right to commence divorce proceedings. Importantly, in a case where there are divorce proceedings initiated both in Colombia and in another jurisdiction, the Colombian court cannot decline to deal with the Colombian divorce proceedings, providing that they are validly constituted as a matter of Colombian law. 

On marriage the parties automatically create a "sociedad conyugal" – this is essentially the marital pot which importantly cannot contain any pre-marital assets. The parties prior to the marriage are also free to sign up to "capticulaciones matrimoniales" – namely a form of prenuptial agreement. These "capitulaciones" can limit which assets are contained within the "sociedad conyugal", even entirely removing any right to claim on the other party's marital assets at all. As in many civil jurisdictions, the concept of "need" is simply not relevant to the division of assets which is solely regulated by the title deeds and the prenup.

In relation to the conditions precedent to any such capitulaciones having force in a Colombian court, both parties should have taken legal advice – although this does not have to be independent advice. Shared advice from a Notary would suffice. The parties only have to identify the assets entering the matrimonial pot – full disclosure does not have to be provided which of course makes sense given that pre-acquired assets cannot form a part of the matrimonial pot in any event. It is also worth noting that any inheritances or gifts acquired after the parties are married cannot form a part of the matrimonial pot regardless of the capitulaciones matrimoniales. Such assets will always remain a party's personal property. Pensions are, however, considered matrimonial assets.

There is no prescribed period prior to the wedding in which the capitulaciones matrimoniales have to be signed, although it is right to say that the nearer the day of the wedding they are signed, the higher the likelihood is of them being set aside on the basis that one of the parties was not really aware of what they were signing. It is important to note that in relation to any capitulaciones matrimoniales or similar which are signed overseas, these will have legal force in Colombia only to the extent that they do not breach Colombian law and policy. 

 Divorce has been legal in Colombia and there are currently three bases for divorce:

(a) contested divorce – on the basis of adultery or other poor behaviour including drunkenness, drug addiction etc

(b) joint application for divorce – this can be done easily in a month without the need for a hearing

 (c) two years separation.

The issue of fault may indeed be relevant to finances inasmuch as spousal maintenance can only be ordered against a "culpable" spouse. Spousal maintenance can be ordered only if the receiving party is the "innocent" party and has no financial resources of their own. Whilst in theory there could be an order for spousal life maintenance, the reality is that such an order is very unlikely. The only cases in which such a lifetime spousal maintenance order would be made are when an "innocent" spouse would otherwise find themselves destitute and unable to survive. It is worth remembering that in line with much of Southern Europe, maintenance orders can also be made as between grandparents and their grandchildren.

As for disputes in relation to children, there is an institution called ICBF "Instituto Colombiano de Bienestar Familia" [the Colombian Institute of Family Welfare] which is similar to Cafcass and becomes involved in a variety of children disputes. Mediation has been embraced and is obligatory – even in cases of child abduction. The mediators are lawyers by training and have extensive experience of dealing with children. There is also provision for the children to communicate their views to the Colombian courts directly by speaking to the judge during meetings at which lawyers and the parties are not allowed to be present. As in many civil jurisdictions, the child maintenance is dealt with by the courts in the same proceedings as child contact issues and the divorce itself. 

Child maintenance is ordered by the courts and very strictly enforced – perhaps this is something which could be embraced in this jurisdiction! It is very straightforward to prosecute a non-paying parent and many parents are indeed sent to jail – such cases being the bread and butter of junior lawyers. Alternatives are entering the name of the non-paying parent on a database which can be accessed by banks, credit card companies and employers. It is also a ground for dismissal from employment and the Colombian courts can and do make orders preventing the non-payer from leaving the country. Orders can also be made against income and assets to ensure payment. Interestingly enough, child maintenance takes precedence over mortgage debts, hence why the banks would no doubt wish to know whether a prospective mortgagor had child maintenance debts. Wages can be frozen with up to 50% being diverted to the receiving party. Child maintenance would normally last until the child is 18 or finishes university, whichever is later, save in the case of disability in which case the child maintenance obligation is open ended. 

As to adoption, it is necessary to obtain informed parental consent save in very exceptional circumstances including the abandonment of the child or in a case where the parents' parental responsibility has already been extinguished due to the mistreatment of a child.

Gay marriage is permitted and is identical in its legal consequences to a marriage between heterosexual partners. The nomenclature is different though as such a relationship is not known as marriage but is a contractual matter. The modernity of Colombian family law is demonstrated by an article in today's Telegraph which reports that Colombia has recently recognised its first "polyamorous family". The article says that three male partners "signed legal papers with a solicitor in the city of Medellin, establishing them as a family unit with inheritance rights".

In relation to cohabitees, provided that they have lived together for more than two years, they have similar rights to married couples inasmuch as there is also a sharing of post- marital assets provided that there are no capitulaciones matrimoniales to the contrary. 

There is also comprehensive legal aid available for family cases via the "Defensores de Familia" linked to the ICBF. Colombian procedural law states that no first instance case should take more than a year and no appeal should take more than six months albeit that these time limits can be extended if necessary.

Colombia is a wonderful country and very much proving its worth in the world. In the words of the Colombian Tourist Office: "The Only Risk is Wanting to Stay"!