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Flexibilization of the ‘public and notorious cohabitation’ requirement in same-sex common law marriages

Recently, Chamber II of the Supreme Court, the highest judicial authority in social security and family matters in Costa Rica, rendered judgment 411-2023. This judgment is fundamental for the defense of the rights of LGBTQI+ people. For this reason, we will dedicate several blogs to the discussion of this judgment. On this occasion we will discuss the requirement of public and notorious cohabitation in same-sex common law marriages.

In judgment 411-2023, the Supreme Court heard the case of a man who claimed his right to a widow’s pension. The plaintiff acted against the Magisterio Nacional, the State and his deceased partner’s brother – who had been granted in fact the pension in question.

The Magisterio Nacional had denied the request of the surviving partner for not having demonstrated public and notorious cohabitation with his partner, a former high school Director. Both the Supreme Court and the lower court considered that flexibility is required regarding this requirement for same-sex couples. In the opinion of the judges, this flexibilization is necessary to avoid inequalities in the legal protection afforded to heterosexual couples and to same-sex couples.

The Supreme Court echoed the reasoning of the lower court according to which «[…] it would not be in accordance with this obligation of the operators of the law, to demand as a requirement to have the common law marriage that the plaintiff invokes (of which could derive the right to a widow’s pension), a ‘coexistence’ and subsequent economic dependence, only from a ‘public and notorious cohabitation in all circles’ of the actor and his sentimental partner in life. The undersigned considers that in a case like this, such a requirement must be dimensioned, to the real possibility according to the context of the time, that the members of this homoaffective couple had.”

The judgment also indicates, citing the lower court, that «[…] this panorama that is observed in the development of the relationship between the plaintiff and the deceased, is that it is necessary to dimension the concept of ‘coexistence with public cohabitation and notorious’, in order to make visible, based on the most elementary rules of logic and experience, that the actor here and the deceased did live together from a common life project, unique and stable, even permanent over time, because we talk about more 20 years together, sharing among themselves and with their family and friends until the death of Mr. [Name 003], but having to refrain from openly disclosing their relationship in the terms that heterosexual couples could do at this time, because not even the family itself allowed to talk about it. It was not so easy at that time for two men to be so ‘brave’, as the judges of the Administrative Court who concurred in the final denial of the claimant’s widow’s pension request so rigidly and unreasonably suggested, when they argued in the sense that if the plaintiff and the deceased did not have such courage, to show themselves ‘before neighbors and different circles’, their couple relationship cannot be considered in cohabitation for the purposes of legally recognizing a common law marriage, in the terms required by the regulations of the Magisterium.”

Consequently, same-sex couples are not required to prove that their cohabitation was public and notorious in all their social circles. It is sufficient to demonstrate a ‘partial public and notorious cohabitation’.

At CELIG we provide specialized services to the LGBTQI+ community. If you want more information or make an appointment with us, call us at  48-000248, whatsapp 506-8334-6441 or write to info@celigcr.com.

We are located in San José, Barrio Escalante.

M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation