Grounds for non-existence and nullity of marriage

portada causales de inexsitencia nulidad del matrimonio scaled

Grounds for non-existence and nullity of marriage

In Colombia, marriage is a legal and social institution that establishes a legal and emotional bond between two people for the purpose of creating a family. Marriage is recognized and regulated by the Civil Code and is celebrated before a public official called a notary or judge.

It is important to note that, although marriage in Colombia is valid in principle, there are circumstances in which it may be declared invalid or non-existent.

Causes of non-existence:

  • Consent: it is a main element.
  • Capacity by reason of age.
  • Object: non-existence is configured when the person does not know the purposes or the rights and obligations of the marriage.
  • The cause: it is configured when the reason for which the legal act is entered into is unknown.
  • Lack of solemnity or substantial formalities.

Grounds for nullity

They are taxable grounds, which means that they cannot be interpreted or applied by analogy.

  1. Capacity: by age or illness in cases where the person is unable to understand what marriage is and what it entails.
  2. Consent: must be free and spontaneous spontaneous.
    • Error: as to the person, as to the essential physical or moral qualities.
    • Force: refers to moral, psychological or physical force that generates serious and irreparable damage. It may come from the contracting party or from third parties. It applies whether it is exercised on property or on the person. This ground is subjective because the judge has to analyze each case, the particular conditions of each person who is alleging force.
  3. Rapture: can occur for two causes:
    • Conjugicide: refers to a person who kills his or her own spouse in order to marry another.
    • Relationship: the relationship of consanguinity, affinity and general civil relationship is an irremediable nullity.
    • Celebration of a second marriage while a first marriage is still in force.
  4. For lack of substantial formalities: it is generated because the marriage is not celebrated before the competent official.

The nullity may have both personal and patrimonial effects.

  1. Personal effects: the previous civil status is recovered, all rights and obligations arising between the spouses cease, the children continue to be matrimonial and remain subject to parental authority.
  2. Patrimonial effects: the conjugal partnership is dissolved, except in some cases, the donations or promises made during the marriage are maintained and the father who does not have the children under his custody must pay a maintenance fee and have a visitation regime.