FAMILIES,FAMILIES, UNIONS,UNIONS, AND CHANGEAND CHANGE

A Colombian PerspectiveA Colombian Perspective

Presented by Presented by Andrew CarvajalAndrew Carvajal

The Family Under Colombian Law

• The 5th Article of the Colombian constitution recognized the family as the fundamental nucleus of Colombian society, and an inalienable right of any human being.

• The State and society shall guarantee the integral protection of the family (in the social, economic and legal realms), and ensure that the relations within it are based on the equality of rights and duties of the couple and a reciprocal respect amongst all of the members that compose the family unit (N.C. Art. 42).

• The Family has precedence over the political community and the State. It is the oldest form of society.

• The State, under civil law, only has authority to intervene in the intimate organization of the family in situations of extreme alteration of the mutual rights of the couple, where the State should merely restore the natural order that has been broken.

Defining Marriage

• The conceptualization of family in Colombia has historically been linked to marriage. While the Catholic marriage was the only accepted form of family formation for a long time, the past 30 years have seen the spread of marriage privileges to other types of unions.

• Marriage is defined as a solemn contract between a man and a woman who form a union in order to live together, procreate and help each other. (N.C. Art. 113)

• It can be carried out by having both members of the couple present, or by granting powers to some other individual to attend the ceremony in one’s behalf

Defining Marriage contd.• Children within or outside marriage, either adopted or

procreated, naturally or with scientific assistance, shall be entitled to the same rights and duties as other individuals.

• The family is perceived as the only natural environment that can provide support to an individual through childhood. This task cannot be carried out by public or private institutions, unless it is done for the a necessary protection of the children, or in the absence of her or his parents.

• People over the age of majority (18 years) can freely enter matrimony. Those who do not meet this criteria, but are older than 14 (for males) and 12 (for females), will need written consent from their parents. (N.C. Art. 117).

• If the parents of the child disagree on grating this permission, the opinion of the father takes priority.

• Adopted male children will need such written consent from both their adoptive father and mother, if they were to marry before turning 21.

Defining Marriage contd.

• The concept of a rational authority is thus still embodied in the law. While the Constitution recognizes that family relationships are based on equal right and duties amongst its members, this does not exclude the fact that parents can still exercise authority over children.

Expanding the Family Phase 1:Civil Unions

• The Roman Catholic Church was the single most important force affecting marriages.

• The Concordat of 1887 with the Holy See was in 1973, allowing for the practice of freedom of religion (inscribed in the Constitution) when applied to the formation of families under Colombian law.

• Marriages performed under the auspices of any religion officially recognized by the Colombian State or international law, were now being recognized.

• Several religious matrimonies, as well as their nullity, would be granted “civil” effects that were established and governed by the law.

Expanding the Family Phase 2:Cohabitation

• Cohabitation was extremely stigmatized over a long period of time and perceived as a threat to the most basic foundation of marriage. Concubinato.

• It was not until the early 1990s that such prejudice directed against cohabitation began to be eliminated, and its legal status started to be recognized. It was then denominated a form of marital union, and terms such as concubine were replaced by permanent partner.

• Cohabitation is legally accepted as a permanent and stable union formed by a man and a woman, in which there is no impediment for them to get married, and which is formed with the intention of starting a family.

• This definition still restricts the concept of the family, or union, to one in which its members are willing to undergo marriage or have the intention of doing so.

• For it to be legally recognized, it needs to last at least two years, while the couple intends and proves to live in a permanent and exclusive companionship. Individuals who are still married or legally attached to someone else cannot begin a second relationship with someone and be recognized by law.

Cohabitation contd.• Cohabiting partners can establish the validity of their relationship by

either signing a mutual agreement where they recognize their partnership, in front of a notary, or by proving to a court or conciliation centre that they have fulfilled the requirements needed to be legally accepted as a couple.

• Law 54/90 extended the same patrimonial effects of a married couple to cohabiting ones.

• More specifically, both members of a union are entitled to equal parts of the property or capital that results from their mutual work and support for each other.

• They are not entitled to the goods obtained through a donation or inheritance by a particular partner, or those owned by an individual prior to the formation of the union. However, they will receive an equal share of the profits, rent and capital derived from this aforementioned products.

Divorce Laws

• Divorce was made legal in 1976 for those couples married and recognized under civil law.

• All legal effects of any kind of marriage would cease under an officially arranged divorce procedure. This can be carried out through a consensual arrangement by the two spouses signed in front of a notary (ipso jure), a common agreement reached under a legally recognized conciliation centre, through a judicial sentence or the death of at least one of the partners (L.59/90, 979/2005).

• Laws stipulating the division of patrimony, in the case of a divorce, apply equally to all types if marriage and also to couples that have signed a cohabitation agreement or can prove their union status by fulfilling the necessary requirements.

The Family in Transition & Changes in Colombian Society

• During the 1970s and onwards there were continued signs of change in the traditional norms and patterns of family life in Colombia.

• Some of these are a result of a high rate of rural-to-urban migration, the growth of urban industrial centers and violent displacements of large populations due to civil strife.

• The decline of the patriarchal extended-family structure has been apparent in the urban society, as increased geographic and social mobility has weakened kinship ties and extended greater independence to young people, though traditional elements of trust and mutual dependence among relatives are still strong and continue to be important in a variety of political and business networks.

• On another front, women in the upper and middle classes, who traditionally were not permitted to do much work outside the home, have vastly entered the labour force, sometimes out of necessity but also out of their own will.

The Family in Transition & Changes in Colombian Society

1995 Women's Marital Status

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20-24 25-29 30-34 35-39 40-44 45-49

Age Groups

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Married

Widowed

Separted / Divorced

Unknown

The Rise of Consensual Unions• According to Richter (1988) Colombia has a relatively higher rate of

children born before and in between unions than other Latin American countries.

• In a study of an urban centre in the Colombian coast (Cartagena) Rosenthal (1960) found that the existence of Catholic families amongst the lower classes was rare. 60 % of all births occurred out of Catholic wedlock.

• She claims that giving birth under a consensual arrangement is socially acceptable and carries no stigma in the lower class.

• Also, oastal regions are characterized by hostility between the sexes and men’s obsession with preserving their liberty and avoiding domination (by women).

• Coastal locals are usually considered to share the belief that one partner does not provide enough satisfaction in one’s sex life, and unfaithfulness is then natural and necessary.

• When a Catholic family breaks up, it usually occurs before or shortly after the young women has given birth to her first child, and often returns to live with her parents. The burden of one’s child support is alleviated by young’s mother family.

• Mothers in a consensual union tend to live with their parents slightly longer than married women.

Consensual Unions contd.

• Higher rates of consensual unions have been found more often in rural rather than urban areas, and poor rather than affluent groups.

• One of the arguments against getting married which is often heard is that priests charge too much and that religious weddings are expensive.

• Goldman (1981) also shows that the younger the age at first union, the higher the percentage of consensual unions in Latin American countries.

• Some consensual unions are being contracted by highly educated couples, for whom this form of union represents an ideological protest against conservative view of the family and marriage (Plata, 1988).

Delaying Marriage

• The delaying of marriages due to personal or structural decisions, conversely, further explains why children prolong their stay with their parents before beginning their own independent life with a spouse.

• It seems to be in the interest of both parents and young adults to continue sharing living arrangements, despite the child beginning to work and even if she or he marries.

• Due to changes in the economy, a general economic depression since the 1990s and the need for higher education, it seems that young adults are postponing moving out of their parents’ home.

Delaying Marriage contd.• Sons tend to leave the home later, as their parents may be less

inclined to see them go given that their tasks are usually oriented towards supporting the household.

• Young adults remain longer with their parents in some rural areas because of this relationship between the economy and the household.

• Within the urban centre, given high living costs and the fact that children provide less for the households in terms of labour when compared to the countryside, parents in a higher strata may be better able to afford keeping children at home, rather than other less affluent urban parents.

• De Vos also argues that as education becomes more important, many migrate to the main cities or the capital to study post-secondary education, so the likelihood of remaining in the parental home is greater for children in large metropolitan areas. Prolonging education, in cities were the parents live, did in fact show to be highly associated with delaying staying at the parental home.

Female-Headed Households

• Colombia has a high number of female-headed households when compared to other Latin American countries.

• Migration to urban centres by more women than men has led to a high number of female-headed household in urban areas (Richter 1988). 48% of residents of the major metropolitan areas headed their own households as compared to 41 % in the countryside.

• Most of these women belong to an age group of 45-49 (De Vos and Richter), and this family arrangement is also dependent on the number of children and the age of the youngest child.

• Women with less education were also more likely to be heading a household by themselves.

Separation and Union Dissolution• Dissolution rates in Latin American are relatively high,

especially when compared to other developing countries (Richter, 1988)

• Part of the explanation rests on high rates of consensual unions, as they tend to have a higher rate of dissolution than marriage.

• Age at first union, age at first birth and the presence of premarital births all seem to be associated with higher family dissolution (Goldman, 1981), more prevalent in poorer groups

• Richter shows in 1988 that in children born without a union, 25% of those would experience family disruption by the age of 15.

• Children in the urban area are more likely to experience family dissolution than their rural counterparts, as well as those with a lower socioeconomic status and less education (Goldman, 1981).

• Some have suggested that the rate of marital separation goes up when women have the increased opportunity to engage in the labour force, as well as where employment for men is unstable.

• A measure passed by Congress in July of this year will give married couples the opportunity to appear before a local registrar with a jointly signed document and get it stamped within an hour.

• While a separate declaration must be drawn up for the division of assets and custody plans will still be issued by family courts, this policy is expected to alleviate the judicial bottleneck caused by 1 million couples that are waiting for their divorce cases to be settled.

• This could significantly change the perception that people might have of going though the process of divorce, and prove less of a disincentive of doing so, while having significant effects on marriage.

Gay Couples

• The patrimonial regimen of marital unions is not extended to homosexual couples.

• The logic behind this is that Arts. 42 and 43 of the Constitutions, which were enacted to protect the integrity of the family and guarantee the equal rights and duties of men and women within a family, cannot extend to homosexuals.

• There is also a legal allegation that only a heterosexual union can generate a family that is united under natural bonds.

• There are various cases of homosexuals being discriminated against by the law and State institutions.

• However, they might have found a way to innovate around this and establish the validity of their relationship under the law. German Humberto Rincón