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Legal aptitude requirement to marry in same-sex common law marriages

Another fundamental issue addressed by judgment 411-2023 of Chamber II of the Supreme Court of Justice is the requirement of legal aptitude to enter into marriage in same-sex common law marriages.

The Chamber recalled that this requirement cannot be equated to the absence of a prohibition to marry established in article 14 of the Family Code. In the opinion of the Chamber, this requirement for heterosexual couples has always consisted of demonstrating freedom of state, that is, being single, widowed or divorced. Regarding same-sex couples, the Chamber clarified that this requirement could never be equated to the legal authorization of same-sex couples to marry, “especially not so given that the aforementioned ordinal 14 in subsection 6) expressly established marriage as legally impossible “Between same-sex couples” […].

The Justices concluded that the surviving spouse (plaintiff in the judicial process) «[…] was required, as a legal aptitude, the authorization of domestic law to be able to marry in Costa Rica with his homoaffective sentimental partner and not the freedom to enter into marriage required to heterosexual couples, who had no legal impediment to marry, which cannot be equated and denotes an evident inequality between these types of couples and a double discrimination, due to the lack of regulation of same-sex marriage and because the plaintiff is also requested to have the common law marriage certified, a requirement different from the freedom of state required of heterosexual couples, who were not asked or asked to prove that their human right to be able to marry is regulated in the internal legal system, but only their freedom of state to do so; which goes against the constitutional philosophy indicated on the intention of the constituent established in articles 51 and 52 of the Fundamental Charter, to protect all families that are such, in order to avoid inhuman discrimination at all levels and groups of our society

This judicial precedent could be very useful for same-sex common law marriages that existed before the entry into force of equal marriage in Costa Rica.

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 or write to

We are located in San José, Barrio Escalante.

M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation