Divorce Law in Colombia May Change

The dynamics of divorce in Colombia are shifting. Currently, there are nine grounds for divorce, one of them being mutual consent. But what happens if one of the parties is simply no longer in love? Well, it is not recognized as a legal basis for divorce in the country.

The absence of these justifications renders the registration of a legal dissolution of the marriage impossible. However, Congress is currently debating a law that would enable unilateral divorce in Colombia, a proposed legislation aiming to expand the existing framework beyond the nine grounds currently recognized.

Earlier this week, the courts ratified that drug use by one spouse remains a valid reason for divorce, upon request by the other party. However, the court decision recognizes the right of the drug user to consume, as well as the right of the spouse to dissolve the legal bond. The judgment modifies the financial compensation, since, from now on, a divorce due to drug use will not give rise to the payment of any compensation.

The nine grounds for divorce

There are nine valid reasons for divorce in Colombia, six are considered “objective” and three are considered “subjective”. Within the first category, where irrespective of which spouse initiates the process, either party has the right to do so, the law specifies:

1. The extra-marital sexual relations of one of the spouses.
2. The serious and unjustified breach of the duties imposed by law upon them as spouses and parents.
3. The outrage, the cruel treatment, and the mistreatment of work.
4. The habitual drunkenness of one of the spouses.
5. The habitual use of hallucinogenic or narcotic substances, unless prescribed by a doctor.
6. Any conduct of one of the spouses tending to corrupt or pervert the other, a descendant, or persons who are under their care and live under the same roof.

Among the subjective ones:

1. Any serious and incurable illness or abnormality, physical or mental, of one of the spouses, which endangers the mental or physical health of the other spouse and so makes the marital community impossible.
2. The separation of bodies, judicial or de facto, has lasted for more than two years.
3. The consent of both spouses was manifested before a competent judge and recognized by the latter through a sentence.

Precisely the fifth of the first group, the consumption of narcotics by one of the spouses, is the one that has been partially modified during this week, while the debate continues in Congress to approve, or not, the free divorce, without grounds and by simple will of one of the spouses.

Surreal situations

With this reality, there are cases in which one of the spouses needs to provide some evidence to prove a cause and get the desired divorce. The lawyer of Barranquilla, Rafael Miranda, has had several experiences in this regard.

“I have played detective to try to graphically demonstrate the existence of a lover”, explains the lawyer, referring to the first of the grounds, the extramarital relations of one of the spouses, which opens the door to legalizing a divorce.

Alejo Medina, a lawyer from Bogota, has had similar experiences. Medina explains how he had to deal with a case in which one of the partners had a cocaine addiction that was not accepted by the other. “It took me many weeks to testify before a judge that the addiction of one of the spouses posed a problem for the conviviality and economic stability of the marriage,” explains the Bogota lawyer.

Regarding the modification on this point approved this week, Medina explains that it complies with what the law foresees, since it recognizes the right of one to freely consume drugs and the right of the other not to cohabit, if they does not want to, with someone who consumes them. “Until now, the right to consume, which is guaranteed by the Colombian Constitution, was not respected. A divorce would take place and the defendant would have to pay economic compensation that clearly violated his rights as a consumer,” explains Alejo Medina, who appreciates the legal adaptation.

The lawyer is also in favor of the approval of free divorce, because “the free and voluntary union of two adults, in a secular state, should be able to be undone with the same freedom and voluntariness with which it was constituted”, he affirms.

Free divorce bill

After a failed attempt in 2019, a second proposal that could radically change this reality has been debated since last year. The bill, defended by Representative Katherine Miranda and Senator David Luna, intends to modify articles 154 and 160 of the Civil Code, which indicate that in order to dissolve the partnership of a couple and grant a divorce, a consensus between both parties is necessary, and points out the effects of this.

The amendment seeks to incorporate a new cause that allows “divorce by the sole manifestation of the will of either of the spouses”. That is to say, if either of the two parties wants a divorce, they will be able to request it unilaterally, without the need of an agreement with the other party.

In the event that there are children, the obligation that the parties will have with respect to the upbringing, education and feeding, as well as other factors to guarantee the well-being of the children, must also be taken into account. The latter will be evaluated by a judge, who will be in charge of reviewing the proposals and proposing alternative settlement formulas.

For now, all this is only supported by a bill that needs to be approved by a parliamentary majority. In the meantime, marriage without grounds remains indissoluble in Colombia.