According to him Colombian Civil Codewhen A couple of spouses remains married, even if they do not live together for several years, the marital partnership remains in force, and there cannot be coexistence of partnerships.. It is for this reason that, at the time of the death of one of the spouses, the marital partnership must be liquidated, but in addition, the surviving spouse is the first call to claim the pension, or even, depending on the case, to claim as heir.
This situation is very common in our country, since many times the person remains married, but without cohabitation or property in common, however, Due to various circumstances, they have not carried out the divorce and dissolution of the marital partnership; a situation that could be vulnerable to the new couple, since the Civil Code indicates that two societies cannot coexist, therefore, the new family unit would not have the possibility of establishing a regime of common property.
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However, the Supreme Court of Justice, in a recent ruling (SC2429-2024) on a very particular case, has established that A separation of bodies that lasts more than two years can lead to the dissolution of the marital partnership..
Divorce
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This legal interpretation has important implications for couples who decide to live separately without initiating formal divorce proceedings. This ruling would be the second in Colombia that resolves in this sense, protecting the rights of the new family nucleus, but generating an important effect regarding the properties and assets acquired during the validity of the marriage.since they could no longer be considered part of a joint patrimony, and in theory, from that moment on, each of the spouses will be able to dispose of their patrimony individually.
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Currently, for pension issues, the spouse and permanent partner can receive a survivor’s pension, proportional to their cohabitation, as long as the legal requirements are met for both to receive the benefit.
Jimmy Jiménez, attorney at the Integrity Legal firmindicates that “Separation of bodies is a legal process that allows spouses to live in different addresses without losing their married status. However, according to the aforementioned ruling, once the two-year period has elapsed from the beginning of the separation, the marital partnership that regulates the economic regime between the parties would be automatically dissolved.”; However, we cannot yet establish this decision as a jurisprudential line, since the civil code has not been modified in that sense, and the courts rule according to the particularities of each case.
Divorce
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“In Colombia, we have nine grounds to request divorce before a judge of the Republic; The separation of bodies for more than two years is one of the grounds for divorce established in the Colombian Civil Code in Article 154. In the event that one of the parties does not want to agree to the divorce, a contentious process must be carried out. of divorce so that it can be decreed by the judge”, comments Jimmy Jiménez.
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These legal developments raise the need to establish modifications in current regulations, not only on the economic status of each spouse, but also in the dissolution and liquidation of the marital partnershipFurthermore, it has important implications in aspects such as inheritances and legal obligations.
When the marital partnership is dissolved, property rights and duties are individualized, which makes it easier for each person to manage their assets independently. Therefore, it is relevant to understand each asset situation, avoiding possible future conflicts in the administration and disposition of the assets..
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