Many couples and people have heard about the subject, however not everyone knows exactly how this is regulated by the legal system and what are the ensuing rights and obligations. In common terms it is known as Common Law Marriage and in legal terms and Domestic Partnership.
Regardless of age, race, nationality, address, many couples in Mexico and in our State live under a Common Law Marriage, and this article may be quite useful to them.
The Civil Code in force for the State of Quintana Roo, applicable in Playa del Carmen, Cozumel, Tulum, Cancun, among other cities, defines Domestic Partnership (Common-law Marriage) as a family relationship where two people live in a steady, committed and permanent manner, based on an affectionate, supportive relationship mutually helping each other for at least two years. This creates reciprocal rights and obligations, mainly on matters of sustenance and succession rights, among others.
At present there are several ways that can prove an actual Domestic Partnership (Common-law Marriage). The general norm is to have two witnesses attesting that the couple has lived together on a steady and constant basis for two years; that the relationship was based upon affection, support and mutual help. Domestic Partnership (Common-law Marriage) can also be proven when, within the same scenario and provided two years have not elapsed, the couple produces a child.
It can also be proven before a Family Court Judge by submitting the pertinent evidence. This proceeding must be filed before a family lawsuit and when the intention is to assert the rights inherent to the Domestic Partnership (Common-law Marriage)
The Domestic Partnership (Common-law Marriage) concept has undergone constant changes just as the Law has evolved and modernized in terms of the rights of the parties involved. All in accordance with the obligation of all authorities to enable, respect, protect and guarantee human rights, specifically the authorities of the State of Quintana Roo, Playa del Carmen, Tulum, Cancun and Cozumel. For example, there is a codified rule practically throughout our country which establishes that a domestic partnership spouse(s) may request maintenance from the other only one year after the relationship has ended. This has been ruled out by Mexico’s Supreme Court as it has deemed it unconstitutional since where there is a marriage the rule is that spouse support will be given during the entire time the marriage has lasted. Therefore, said rule would be inequitable in the case of domestic partnership.
Another aspect that has changed in the Domestic Partnership (Common-law Marriage) alongside the evolution of human rights, is the rule found in multiple Civil Codes of our country which provides that when a person is married the rights of a common-law spouse cannot be recognized. This has been ruled as unconstitutional by the Supreme Court as it violates the principle of equality and non-discrimination precluding a claim for support through a judicial process and only favors the protection of a family formed under a marriage, when, as provided by Article 4 of the Constitution, in truth marriage and domestic partnership can coexist and all families must be protected, regardless of how these families were formed. Hence, the condition of a non-existent marriage by which a domestic partner could be protected is considered discriminatory. All of the above is innovative and clearly demonstrates the changes in the way of thinking of those who impart justice within the highest spheres in the country by adapting the Law to the day-to-day reality.
Finally, we will talk about the division of assets acquired during the domestic partnership as it is an interesting and new topic, given that based on their efforts and common work two people in a domestic partnership (common-law marriage) could have gathered assets.
And as in Domestic Partnership (Common-law Marriage) there is no community property, a decision in this respect must be dictated on the bases of general rules provided for settling a partnership, as provided by Articles 19, 20 and 21 of the Civil Code in force for the State of Quintana Roo applicable to Playa del Carmen, Tulum and Cozumel, and as provided by article 2 of the Code on Civil Procedures in effect for the State which provides that when courts are presented with an unregulated controversy, the courts must not refuse to hear the case under the pretext of an obscure interpretation or insufficiency of the law, because they must solve judicial conflicts in accordance with the letter of the law or its legal interpretation, and in the absence of the law, resolve as per the General Principles of the Law. And as in this sense the law has no provisions on marital property for Domestic Partnership (Common-law marriage) it is appropriate to consider that there is actually a civil partnership between live-in partners; an understanding between them that it does not necessarily have to be specific, but it can also be implied because given the nature of this relationship, as an institution of family rights, they agreed to combine their resources and efforts in order to achieve a common goal, and whose joint works is intended to cover the needs of the members of the family. Upon the foregoing, concerning civil partnerships, it should then be concluded there is no impediment to carry out the dissolution or settlement of assets in a Domestic Partnership (Common-law marriage) as provided by the Civil Code for the state of Quintana Roo, applicable to Playa del Carmen, Tulum and Cozumel , and where parties will have the burden of proof that assets were actually acquired during the time the relationship lasted and with proceeds obtained by their joint and remunerated work.
This criteria may be consulted at legal magazine from Second Appeal Family Court from the month of February 2021 in the link below.
This above is a summary of the Domestic Partnership (Common-law marriage) in the legislation of the State of Quintana Roo, Mexico, specifically for Playa del Carmen, Cozumel, Cancun and Tulum. If your need a more detailed advice, please contact us by phone or send us an e mail and we will gladly answer your questions.
Atty. Gustavo Anaya Villa