Former jurisprudence by the Colombian Supreme Court of Justice (SCJ) held that a connubial patrimony may not arise from a De Facto Marital Union, when one or both partners are still bound by an undissolved marriage.
However, in rulings SCJ SC4027-2021 and SCJ SC5106-2021, the SCJ defended a different stance, attributing the automatic dissolution of the matrimonial patrimony to the de facto separation of spouses for more than two years.
Recently, in ruling SC1422-2025 of May 22, 2025, authored by Hon. Justice Martha Patricia Guzmán Álvarez, the SCJ resolved an appeal and reaffirmed the legal impossibility that marital and patrimonial partnerships coexist.
The Court also rejected the idea of an automatic dissolution of the matrimonial patrimony following two or more years of physical separation between spouses. Nonetheless, it clarified that the traditional position—which denied the economic effects of de facto marital unions arising before a previous matrimonial relationship is duly dissolved, cannot be maintained.
The SCJ’s ruling offers as an alternative, the recognition of a special de facto partnership made up of assets acquired for value and liabilities incurred through the joint efforts of the cohabitants. This alternative is summarized in the following subrules:
- Whenever a de facto marital union lasting no less than two years is recognized, but the creation of a connubial patrimony between the cohabitants is denied due to the coexistence of a preexisting marriage, the judge may recognize a "special de facto partnership", declare it dissolved, and order its liquidation.
- In the liquidation request, the interested partner must list the assets and liabilities arising from the joint efforts of the cohabitants and must provide evidence that these were effectively acquired from the mentioned efforts.
- The fact that an asset was acquired for value during a de facto marital union of more than two years is a relevant indication that the acquisition was the product of joint efforts by the partners. This indication, by itself, may be sufficient to deem the asset as belonging to the special de facto partnership.
- The spouse who still maintains a valid marital partnership with one of the cohabitants must be summoned to the proceedings to ensure the proper exercise of the right to defense.
Both the summoned spouse and any of the parties may challenge the inclusion of an asset or liability in the "special de facto partnership" by presenting irrefutable evidence that unequivocally ties said assets to the marital property. The mere existence of the marital partnership will not, by itself, disprove the presumption of joint acquisition.
- The liquidation of this "Special De Facto Partnership", which is civil in nature, must guarantee strict equality between the cohabitants. The same procedure as for the liquidation of conjugal partnerships will be followed, and it will be handled by the judge who recognized the existence of the de facto marital union.
- After the dissolution and liquidation of the special de facto partnership, the portion corresponding to the member of the couple who is married to another person will be added to their marital property.
- The CSJ explains that the sub rules do not restrict the possibility for the parties involved to resolve their patrimonial situation autonomously, acting in good faith and with full respect for the formal and substantive rules established by national legislation. The Court, however, does not establish whether the member of the first couple is required to participate.
In this way, the Court raises the Special de facto partnership between permanent partners confirms that it can indeed coexist with the conjugal partnership arising from a previous marriage.
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