This article was originally published on Medellin Living.
Sooner or later, if you spend enough time in Colombia, you’re likely going to find yourself in love. Perhaps your goal is to settle down here and start a family, maybe it’s take your loved one back to your home country, or neither. At Casacol we see clients of ours every day come with questions about the law as it pertains to relationships, marriages, and visas in Colombia. Therefore, I wanted to write this article with a number of pointers to help Medellin Living readers navigate the law when it comes to “serious” relationships in Colombia, how to protect your assets, and the pros and cons of a number of legal options when it comes to “defacto martial unions” (not necessarily marriages) in Colombia.
I wish to educate our readers through three real examples that we have recently advised clients on in our office:
Marriage Example #1 – “I have assets in my home country and assets (or planning to acquire assets) here in Colombia, stay in Colombia and live with/marry my loved one here in Colombia.” This is a very common case. Many foreigners have spent a lot of time building their net worth at home and abroad and want to protect those assets regardless of martial outcomes.
The very first recommendation for this type of client is a prenuptial agreement known in Spanish as “capitulacions maritales”, in the case of common law marriages and “capitulaciones matrimoniales” in the case of marriage. The laws for prenuptial agreements are governed by Articulo 7 Ley 54, de 1990 and the 4th Book of the civil code in Colombia. However, just like in your home country, prenuptial agreements in Colombia can be like Swiss cheese and it depends heavily on the lawyer’s design of a prenuptial agreement that will not be open to future interpretation or negotiation if your marriage goes bad.
Assets that you accumulate PRIOR to your marriage/union in Colombia are usually NOT up for debate when dissolving any martial union in Colombia. However in the absence of a prenuptial agreement OR if you were to sell assets to acquire NEW assets during the relationship you will likely open yourself to risk that can easily and inexpensively be avoided through a well-designed prenuptial agreement at the time of cohabitation with your loved one.
Assets acquired POST marital union are most commonly divided at “50/50” in Colombia like many other countries (governed by Book 4, Section 22, Chapter 1 through 6 of the Colombia civil code). However, an experienced lawyer will design a combination of prenuptial agreements with asset dissolution agreements that can protect any claim on your future assets as well.
Important note: Two consecutive years of cohabitation in Colombia represents a legal and defacto marital union. Without a prenuptial agreement many of your assets accumulated up until now can be at risk. The law and jurisprudence in Colombia has been changing very fast in this area and especially if children are involved.
Bottom line: A prenuptial agreement and experienced lawyer can design marital agreements before, during and after periods of marriage and cohabitation that will maximize the protection of your hard-earned assets in Colombia.
Marriage Example #2 – “I’ve been living unmarried with my loved one for the last 2 years, what should I do?” This is exactly the right time to seek legal assistance because, like it or not, you are in a defacto marital union. Now is the time to declare and divide Colombian assets that you have acquired in the previous 2 years (bank accounts, cars, real estate, etc.).
The actually process in Spanish is called “disolution y liquidacion de la sociedad patrimonial de hecho” or loosely translated as “division and declaration of assets”. This process is commonly executed during the termination of a marital relationship. HOWEVER, it is also used to formalize a non-marriage relationship during a cohabitation period, thus protecting your assets.
For the foreigner that is accumulating assets while living with his/her loved one in Colombia, this is highly recommended, unless you plan to terminate the relationship at/before the 2 year mark.
Failing to declare/divide your assets before the 2 year mark can lead to serious complications, lawsuits, and issues to your immigration status in Colombia, if and when you do terminate the relationship.
Note to the reader: The trigger for a defacto marital union in Colombia (2 years of cohabitation) is a lot earlier than many countries and there are ways to ensure that your assets are protected before, during and after living with your unmarried loved one.
Marriage Example #3 – “I’ve met this girl, I want to marry her, stay in Colombia and I need a visa ASAP.” Readers in this category can take comfort in knowing that they aren’t the first, and won’t be the last to find themselves under the spell of a Colombian woman. We do NOT recommend the use of legal unions or marriages solely for the purpose of solving your Colombian immigration status, BUT, you may have a legitimate desire to follow this path.
The requirements for the TP-10 visa in this case are straightforward. A lawyer will use the decreto 1664 de 2015 (Colombian Law) to notarize the declaration of a defacto martial union regardless of the length of your relationship with your new found love. The main requirement is that both parties are legally single and not married and not be part of an undissolved marriage.
The person desiring the visa can immediately present his/her case to Cancilleria Colombia and at the discretion of Cancilleria you may be called to Bogota for an in person interview. This is where an experienced lawyer will prepare documentation for you and your loved one for a successful interview with the Colombian immigration authorities.
These types of cases are fairly straightforward as long as the relationship is legitimate. We’ve never had the case but one could anticipate problems if the martial union is illegitimate and Cancilleria/Migracion deem the application a fraud.
I can personally assist with advising clients on all these kinds of cases when necessary. Remember: no two cases are alike and every client needs a strategy that works for their specific case when it comes to marriage/divorce/cohabitation in Colombia. I can be reached directly at [email protected], so please don’t hesitate to contact me at any time.
About the writer: Juan Jose Giraldo is the legal counsel for Casacol SAS, Medellin’s premier foreign investment and real estate agency. Previous to Casacol, Juan Jose worked in his father’s law firm Giraldo y Asociados, a boutique Medellin law firm providing legal counsel to a small number of ultra high net worth local families.