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Separation due to terminal illness of one of the spouses in a common law marriage

One of the difficulties that surviving spouses in common law marriages could face is proving the uninterrupted cohabitation provided for by the Family Code. In its judgment 2452-2022, the Second Chamber of the Supreme Court of Justice analyzed whether cohabitation could be interrupted when the deceased spouse is compelled to move to a different residence due to terminal illness. In this blog we comment on the relevant conclusions of this ruling.

In the case analyzed by the Court, three months before his death, one of the spouses had to move with one of his relatives due to a terminal illness. The surviving spouse, who worked long hours, could no longer take care of him. The couple considered hiring the services of a third person to take care of him, but the now deceased spouse’s wish was to move with his relatives in another part of the country. During the three months they lived apart, the couple provided mutual support and help to each other.

The above circumstances led the Court to conclude that, despite not living under the same roof during the last three months of the relationship, their cohabitation was not interrupted for the purposes of the Family Code.

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M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation