Analysis of article 77 of the constitution on the stable union of facts, assumptions of its

existence and dissolution and liquidation according to the new legislation of the civil code

Subsistence is a term used to define what is used for the sustenance or maintenance of
oneself through necessary means. It is the means by which an organism stays alive.

The legal assumption is a hypothesis on whose realization the legal consequences posed by
the norm depend. The legal consequences that give rise to the assumption may consist of
the creation, transmission, modification, or extinction of rights and obligations.

Article 77 Marriage between a man and a woman is protected, based on free consent and
the absolute equality of the rights and duties of the spouses. Stable de facto unions between
a man and a woman that meet the requirements established by law will produce the same
effects as marriage.
STABLE DE FACT UNIONS

Art 77 of the constitution:

“Marriage between a man and a woman is protected, based on free consent and the absolute
equality of the rights and duties of the spouses. “Stable de facto unions between a man and
a woman that meet the requirements established by law will produce the same effects as
marriage.”

Verify the ruling of the Constitutional Chamber of the Supreme Court of Justice dated
07/15/2005 whose file is 04-331 of the Carmela Manpieri case, which filed an appeal for
interpretation with respect to de facto unions.

CONCEPT

The stable de facto union is cohabitation or life in common, an element that can be replaced
by coexistence in constant visits, mutual help, repeated economic help, joint social life, and
children, between a man and a woman, without impediments to contract marriage, such
union will be of a permanent nature (minimum two years), and that the couple is single,
formed by divorced or widowed people among themselves or with single people, without
there being any decisive impediments that prevent the marriage. And to claim possible civil
effects of marriage, it is necessary that a definitive judgment recognizes it, the relationship
being exclusive of others with the same characteristics.

ITEMS:

Unit:
Well, like marriage, it implies that there can only be a union between a single man and a
single woman, to be considered valid.

Consent:

It is based on the agreement between those united to take each other as a couple, among
themselves and before others, with coexistence under the same roof not being necessary.

Perpetuity:

The union also implies permanence over time and must be at least two years.

Formality

It is not subject to legal forms, only that whoever alleges it must prove it and it must be
declared or recognized for it to take effect, through a definitively final sentence.

Dissolubility:

Well, it can be dissolved by the agreement of wills and if any of the parties wish to claim
assets, the sentence must establish the start date of the relationship and the date of its
termination.

CONCUBINAGE

CONCEPT

It is a non-marital union between a single man and a woman, which is marked by the
permanence of life together, being single a decisive element in the qualification of
concubinage, as can be seen from article 767 of the Civil Code and 7 , letter a) of the Social
Security Law, as stated by the TSJ in said ruling. Hence the difference between stable de
facto unions and concubinage, cohabitation under the same roof, since all concubinages are
stable de facto unions, but not all stable de facto unions are concubinage, in accordance
with the ruling in comment.
Within this context, Pérez and Tesara (2005) define concubinage as the de facto situation in
which two people of different sexes find themselves living together without being united in
marriage and without there being impediments to contracting it. It is, therefore, a de facto
union with characteristics of stability and permanence; Both short-term transitory unions
and stable sexual relations but not accompanied by cohabitation are undoubtedly excluded
from its concept.

ITEMS:

Unit:

It implies that it can only be established between a single man and a single woman.

Consent:

It is based on the agreement of wills to live together as a couple, under the same roof,
without any impediment to getting married.

Perpetuity:

It must exist for a long time, at least two years.

Formality

There is no formality, only the agreement of the cohabitants to remain together under the
same roof, and without any of them having impediments to the marriage, in addition, it
must also be proven by whoever alleges it and declared through a definitively final
sentence. Sometimes a certificate of cohabitation is issued by the civil headquarters which
is merely for the purposes of acquiring housing or to enjoy insurance benefits. It should be
noted that these are requirements requested by some organizations, and that due to custom
and use they are used. to prove the existence of a concubinary relationship, it should be
noted that the means to prove said existence for the purposes of claiming inheritance, for
example, is the aforementioned sentence.

Dissolubility:
It can be dissolved by the will of the parties at any time. Whenever they interrupt
cohabitation and therefore permanence.

Given all the previous considerations, a comparative table of the effects of marriage and
stable de facto unions is prepared, understanding within this concubinage as a species,
which in the terms of the CRBV, are comparable and that emerge from the interpretation
that the TSJ made of article 77 of the Magna Carta.

MARRIAGE

STABLE DE FACT UNIONS

Personal effects:

There are duties between spouses: fidelity, living together and mutual help. Optional use of
the husband's last name.

Personal effects:

There are no duties between those united: life together is verified because it is a serious and
integrated relationship, that it is in the presence of a couple.

However, the duty of mutual aid does subsist.

You cannot use the last name of the cohabitant or partner, since the condition of cohabitant
or partner does not modify the marital status, therefore it cannot alter the identity of the
person.

Termination of the relationship:

Due to divorce or death. Consequently, he is called an ex-spouse.

Termination of the relationship:

due to death or repudiation of the relationship by any of the components, rupture of the
continuity of the relationship (because one marries another person). Consequently, if he
were a cohabitant, he would be called an ex-concubine.

Patrimonial regime:

Marital capitulations, or limited community of property.

There is a survivor's pension, they have the right to comprehensive medical assistance, they
have the right to claim compensation that corresponds to their deceased partner, they can
request loans to obtain housing.

Such a community is dissolved with divorce or in the request for separation of bodies the
separation of property is also specified.

The wife inherits and concurs with the other heirs according to the order of succession
indicated in the Civil Code (articles 824 and 825) in matters of succession without a will, in
accordance with article 807 of the Civil Code.

Sales between spouses are void.

Patrimonial regime:

These are economic benefits that arise from the assets of the cohabitants: savings,
insurance, taxpayer investments, everything that refers to the common assets.
Consequently, for cohabitants there is a survivor's pension, they are entitled to
comprehensive medical assistance, they have the right to claim compensation that
corresponds to their deceased partner, and they are eligible for loans to obtain housing. Its
dissolution is done by death or deed, a case in which it must be alleged and proven by
whoever seeks the dissolution and liquidation of the community.

There are inheritance rights between the unions in accordance with the provisions of article
823 of the Civil Code, provided that the death of one of them occurs during the existence of
the union. Once it has ceased, the situation is the same as that of separated or divorced
spouses. Furthermore, he or she participates with the other heirs according to the order of
succession indicated in the Civil Code (articles 824 and 825) in matters of intestate
succession, in accordance with article 807 of the Civil Code, and his legitimate rights must
be respected (article 883 of the Civil Code). if there is a will. Likewise, the causes of
unworthiness that exist between cohabitants will be applied in accordance with article 810
of the Civil Code. This is what the Judgment in comment expresses. The same happens in
the case of absence, you can request alimony.

Sales between the united are null.

Based on the reality of human relationships, the law, which is a social phenomenon acting
as a factor, because it affects behaviors and regulates them, and as a social product, because
it emerges from the needs of the collective, is how it regulates the unions that are different
from the marriage shelter families under their wings, understanding that the main purpose is
the protection of children and adolescents and in honor of many people who, because they
did not meet the formal requirements of marriage, were excluded from many social, legal
and economic benefits, this is how Finally, through the constitution and jurisprudence, the
effects of marriage are similar, as far as possible, to stable de facto unions, including
concubinage.

From the above, the importance of the fact that the legislator responds to the demands of
social coexistence is evident, since society, being a changing agent, modifies behaviors,
which should generate, as it does, the transformation. legislative and, most importantly, the
paradigmatic change of cultural and social consciousness.

It should be noted, according to the assessment of the research, that with the assimilation of
all unions to marriage, the marriage institution is definitely the model par excellence of
union between a man and a woman and that with its evolution it has come to be celebrated
more than for economic and cultural reasons, for reasons of love and feeling between the
couple.

HOMOSEXUAL UNIONS OR BETWEEN PEOPLE OF THE SAME SEX.

Homosexuality is neither a disorder nor a disease, but a normal variant of human sexual
orientation. The vast majority of gays and lesbians live happy, healthy, well-adjusted and
productive lives. Many gays and lesbians have permanent relationships with people of the
same sex. In essential psychological terms, these relationships are the equivalent of
heterosexual relationships. The institution of marriage allows individuals a range of
benefits that have a favorable impact on their physical and mental well-being. Large
numbers of children are currently being raised by lesbians and gays, both in same-sex
couples and single parents. Empirical research has consistently shown that homosexual
parents do not differ from heterosexual parents in parenting skills, and that their children do
not show any deficits compared to children raised by heterosexual parents. State policies
that ban same-sex marriage are based exclusively on sexual orientation. As such, they are
both a consequence of the stigma historically associated with homosexuality and a
structural manifestation of that stigma. Additionally, allowing them to marry would give
them access to the social support that facilitates and reinforces heterosexual marriages, with
all the psychological and physical benefits associated with such support. Furthermore, if
their parents are able to marry, children of same-sex couples will benefit not only from the
legal stability and other family benefits that marriage provides, but also from the removal
of state-sponsored stigmatization from their families. There is no scientific basis to
distinguish between same-sex couples and different-sex couples with respect to their legal
rights, obligations, benefits, and duties granted by civil marriage.

Current geographic distribution

Legal situation of homosexuality in the world No information Legal homosexual behavior

Homosexual marriage Civil unions No civil unions Recognition of homosexual marriages
performed in other countries/or states within the country Illegal homosexual behavior
Minor penalty Major penalty Life imprisonment Death penalty

Currently the countries in which homosexual marriage is legal throughout their territory
are:

§ Netherlands (since 2001)

§ Belgium (since 2003)

§ Spain (since 2005)

§ Canada (since 2005)

§ South Africa (since 2006)

§ Norway (since 2009)

§ Sweden (since 2009)

§ Portugal (since 2010)26

§ Iceland (since 2010)27

§ Argentina (since 2010)28

Additionally, marriage is legal in six jurisdictions in the United States:

§ Massachusetts (since 2004)

§ Connecticut (since 2008)

§ Iowa (since 2009)

§ Vermont (since 2009)

§ New Hampshire (since 2010)

§ Washington, D.C. (in force since 2010)

And in a jurisdiction of Mexico:

§ Mexico, D. F. (from 2010)

Netherlands

In 2001, the Netherlands was the first state in the world to recognize the right to marriage
for same-sex couples. In 1995 the government commissioned a parliamentary commission
to investigate the possibility of establishing same-sex marriages; two years later the
commission concluded that same-sex couples should be eligible for the right to marry. In
2000, the same-sex marriage law was approved by 49 votes to 26 in the Senate and by 109
to 33 in Parliament. The law came into force on April 1, 2001. Despite the negative vote of
the majority of deputies from Christian parties (in the opposition at the time of approval),
these parties showed no intention of repealing the law when they came to government in
2002. Until 2005, 6,600 same-sex marriages were celebrated in the Netherlands.

Belgium

In Belgium, same-sex marriage came into force on January 30, 2003. In 2002, an
amendment to extend the right to marriage to homosexual couples was presented in the
Belgian Senate and the Belgian Chamber of Representatives, and was approved by 46 votes
to 15 and 91 votes to 2, respectively. Initially, the law prohibited a Belgian citizen from
marrying another citizen of a country that did not allow same-sex marriage and did not
contemplate adoption. These restrictions were repealed in 2004 for the first time and in
2006 for the second. In July 2005, a total of 5,850 marriages of this type had been recorded.

Spain

In Spain the law that recognizes the right of same-sex couples to marry came into force on
July 3, 2005. The Congress of Deputies approved the law in a first vote by 183 votes in
favor against 136. As it passed through the Senate, the law was vetoed by 131 votes to 119.
Back in Congress, the veto was lifted and the law was finally approved by 187 votes to 147.
The approval of the law aroused opposition from the Catholic Church and the Popular
Party, which filed an appeal of unconstitutionality before the Constitutional Court, whose
resolution is still awaited. The Spanish population was 66% in favor. By the end of 2008,
12,648 same-sex marriages had been celebrated in Spain. A 2011 survey carried out in
Spain revealed that 56% of citizens are in favor of a union between people of the same sex
being called "marriage" and of being able to adopt children.30

Canada
The gay marriage law in Canada came into effect on July 20, 2005. It was the first country
on the American continent to legalize it. Since 2003, various provinces in Canada had
approved marriage; in total, before approval at the national level, a similar law was already
in effect in 9 of the 13 Canadian regions. On December 9, 2004, the Supreme Court of
Canada ruled that same-sex couples' access to marriage was constitutional and that it was
the federal government that had exclusive jurisdiction to recognize that right. This
prompted the Liberal government to present a gay marriage law that, after passing through
the House of Commons of Canada, where it received the support of 158 to 133, reached the
Senate where it was approved by 46 to 22. As of October 2006, 12,438 same-sex marriages
were celebrated in Canada.

South Africa

On November 30, 2006, the same-sex marriage law became effective in South Africa. In
December 2005, a ruling by the South African Constitutional Court ruled that
discrimination based on sexual orientation was unjustifiable and gave the government 12
months to amend the National Marriage Act by replacing the words husband or wife with
the word spouses. The law was passed by the South African National Assembly with the
support of 230 in favor to 41 against.

Norway

In Norway, the law establishing same-sex marriage came into force on January 1, 2009.
The bill presented by the center-left government was approved in the upper house by 23
votes to 17 and in the lower house by 84 to 41. The law was supported by the ruling
coalition parties, the Norwegian Workers' Party, the Sosialistisk venstreparti and the Center
Party, as well as the conservative Høyre party and the liberal opposition Vestre party. The
Christian Democratic Party and the populist right-wing Party, the Progress Party,
positioned themselves against it.

Sweden

Same-sex marriage in Sweden came into force on May 1, 2009. The law, which had the
support of six of the seven parties that have parliamentary representation, was presented by
the center-right coalition government.31 The result of the vote in parliament was 261 votes
in favor and 22 against. The Moderate Party, the Centrist Party, the Liberal People's Party,
the Left Party, the Green Party and the Social Democratic Party voted mostly in favor,
while the majority of deputies from the Christian Democratic Party voted against.

Portugal

The marriage was approved during 2010:

§ January 8 - Voting in the plenary session of the Assembly of the Republic, the Portuguese
parliament approves the government's proposal.32

§ February 10 - Approval by the Assembly of the Republic.33

§ March 5 - Reception of the decree by the President of the Republic Aníbal Cavaco
Silva.34

§ March 13 - The President of the Republic sends the law to the Constitutional Court.35

§ April 8 - The Constitutional Court issues its opinion stating that there is no
unconstitutionality.36

§ April 23 - The deadline for a possible modification or request for nullity of the law ends.

§ April 26 - The Constitutional Court sends the law for publication in the Diário da
República.37

§ April 28 - Publication of the law in the Diário da República.38

§ May 17 - Being against it, the President still sanctions the law, arguing that in times of
crisis we should not divide the country, but rather unite it more39

§ May 31 - The law was published in Diário da República and thus the law on marriages
between people of the same sex in Portugal comes into force on June 5.40

Iceland
On June 11, 2010, the Parliament of Iceland approved without votes against (with 49
deputies present out of a total of 63). Iceland thus became the ninth country in the world to
approve same-sex marriage. In this way, the electoral program of the ruling coalition,
headed by the social democrat Johanna Sigurdardóttir, who is also the first lesbian
politician in the world to occupy the position of prime minister, was fulfilled. The entry
into force of the new marriage regime entails the repeal of the specific regulation that
allowed unions between people of the same sex, in force in Iceland since 1996.

Argentina

Although it was in the jurisdiction of Tierra del Fuego where the first marriage between
people of the same sex in Latin America was registered,41 it was only on July 15, 2010
when marriage between people of the same sex was approved in Argentina.42 It was
overwhelmingly supported — although not unanimously—by the ruling party, and the
support of other forces was decisive. It was approved in both chambers of the National
Congress, both the one that represents the people and the one that represents the provinces.

This discussion began in October 2007, when the representative of the Frente para la
Victoria party (currently belonging to Nuevo Encuentro), Vilma Ibarra, presented a project
aimed at providing equality between homosexuals and heterosexuals.43

The sectors that most opposed were the Catholic Church, the Protestant denominations44
and the country's conservative parties, some sectors of the Radical Civic Union, a minority
of the ruling Front for Victory, the party called "Federal Peronism", and other sectors, such
as the Argentine Catholic University and the newspaper La Nación.

A note from Cardinal Primate Jorge Bergoglio was released in which he described the
legislative progress of the project as “a “move” of the Devil” and in which he encouraged
people to accompany “this war of God” against the possibility of homosexuals being able to
marry. President Cristina Fernández, from Beijing, criticized these sayings, responding
"they are things that refer to the times of the Inquisition."45 The Church also
unsuccessfully tried to promote the holding of a plebiscite on the matter46 The
conservative parties argue as the "defense of the family." and "the natural order of things",
and they say that it is a law promoted by the ruling party to divide the country. Marches
against the project were called throughout the country.47

The senator of "Federal Peronism", Liliana Negre de Alonso, who created a controversy by
saying that "this law would favor the illegal trafficking of semen and eggs", managed to
obtain 500,000 signatures against the project and agreed on a new project - which finally
was rejected—which would have prohibited homosexual couples from adopting children
(the most controversial implication of the law sent to the Senate) or from performing
artificial inseminations.48

The sectors in favor are the Argentine Federation of Lesbians, Gays, Bisexuals and Trans
(FALGBT), the Argentine Homosexual Community (CHA), the UBA (University of
Buenos Aires)49 along with other public universities in the country, Human Rights
organizations , such as Mothers of Plaza de Mayo, Grandmothers of Plaza de Mayo, the
INADI (National Institute against Discrimination), the CGT (General Confederation of
Labor), the CTA, progressive parties, such as the Front for Victory (officialism), the
Socialist Party, Nuevo Encuentro, Frente Amplio, Civic Coalition, part of the PRO, the
UCR (Unión Cívica Radical), Proyecto Sur, among others. The vast majority of the media
supported this law, and gave extensive coverage to the issue, as did some Historical
Protestant Churches such as the United Evangelical Lutheran Church and the German
Evangelical Church of the Río de la Plata. Some members of the Catholic Church also
spoke out in favor.50 LGTB launched a non-profit advertising campaign showing
renowned actors, philosophers and historians in favor of “equal” marriage. They also
promoted marches in favor, where both gays and heterosexuals attended. Political parties
promoted this law to achieve equal rights and to not create a climate of homophobia and
heterosexism in the country.

On December 28, 2009, the first marriage between people of the same sex was made
official in Argentina51. It is a significant fact because it was the first in Latin America,
which caused great controversy throughout the continent. Alex Freyre and José María Di
Bello managed to achieve it after a court in the city of Buenos Aires gave them permission
to marry on November 13. They were going to get married on December 1, but a judicial
controversy prevented the process. They finally managed to get married in the Patagonian
province of Tierra del Fuego, thanks to the consent and an executive decree of the governor
of that province, Fabiana Ríos. Since then they constantly fought for the marriage law.

On May 5, 2010, the Chamber of Deputies of the Nation gave half approval to the project,
and in the early hours of July 15, 2010, it was finally approved in the Senate of the Nation,
with 33 votes in favor, 27 against and 3 abstentions. Thus, it becomes the first country in
Latin America to approve it at the national level.52 On July 30, 2010, in the civil registry of
the city of Frías, province of Santiago del Estero, the marriage of José Luis David Navarro
and Miguel Ángel Calefato, being the first equal marriage carried out in the country under
the protection of the new law.53

USA

At the federal level, the United States approved the Defense of Marriage Act in 1996,
which defines marriage as the union of a man with a woman, so federal laws cannot
recognize marriage between people of the same sex.

At the state level, same-sex marriage is recognized by five states and the District of
Columbia. The first to approve it, after a court decision, was Massachusetts in 2004;
Connecticut did so in 2008, also after a court ruling. Iowa legalized same-sex marriage in
2009, although it had already allowed such marriages for one day in 2007, August 30-31.
Vermont, which also approved same-sex marriage, was the first in the United States to do
so legislatively. The New Hampshire marriage law went into effect on January 1, 2010, this
law was approved by the state houses, being the first that did not receive a veto from a
governor. Subsequent attempts to abolish same-sex marriage laws in Iowa and New
Hampshire have been rejected. In 2010 it was approved in the District of Columbia
(Washington DC).

In 2008, the California Supreme Court declared the ban on same-sex marriage
unconstitutional and legalized same-sex marriage in the state. This decision was reversed
five months later by a referendum on November 4, 2008, through the so-called Proposition
8, which amended the Constitution so that marriage was only between a man and a woman.
The 18,000 same-sex marriages that had been made official up to that point remain legal.54
Federal District (Mexico)

On December 21, 2009, the Legislative Assembly of the Federal District, in Mexico City,
approved by a majority of 39 votes in favor, 20 against and five abstentions, the
establishment of the alliance between people of the same sex, including their right to
adoption, based on the initiative presented by the ruling party of the capital city, Party of
the Democratic Revolution.29 This made the Federal District the only federal entity in
Mexico and the first in Latin America that approves this type of union . The initiative
includes reforms to six articles of the civil code,55 especially to article 146 so that, instead
of establishing "Marriage is the free union of a man and a woman (...)", as it said before, it
currently states which is "The free union of two people (...)", and article 391, referring to
adoption, which same-sex couples may have access to.

Consequently, any couple, regardless of their sexual orientation, may marry in said federal
entity and adopt there, when both agree to consider the adopted child as a child (...). It is
worth highlighting that, although many media outlets, human rights and civil society
organizations, political associations and several local politicians wanted to emphasize that
these rights were acquired in the Federal District for the community made up of sexual
minorities (recognized internationally as an LGBT community, the generality of the reform
as well as its legal terminology actually undermine the fact that it has been an achievement
of non-heterosexual members of Mexican society. This becomes even more evident a few
months after the initial euphoria caused by the amendments, since they are modifications
aimed at avoiding any type of discrimination, for example, between those who are spouses
and those who are cohabitants.

On the other hand, it should be noted that some political factions are already studying doing
the same in the cities of Monterrey (Nuevo León), Guadalajara (Jalisco) and Veracruz (state
of Veracruz), as well as access to the rights of spouses in a marriage. civil rights recognized
by the authority (different from the rights of cohabitants and members of cohabitation
societies), such as social security (in process at the federal level), pension for widowhood
or divorce and, also, union of assets to request personal loans.
Some states with conservative governments (Baja California, Guanajuato, Jalisco, Morelos,
Sonora and Tlaxcala) promoted a lawsuit before the Supreme Court of Justice, to not
recognize relationships between homosexuals, in which they argued that residents of the
states in where civil union between people of the same sex is not permitted, they would go
to the Federal District to get married and then return to their state of residence demanding
the rights that that entity grants to marriages. In this regard, the Supreme Court ruled that
the demands of said states were "notoriously inadmissible."56 It was not until August 5,
2010 that the Supreme Court decided, by nine votes to two, that the other states of the
Mexican Republic are obliged to recognize the validity of marriages between people of the
same sex that take place in the Federal District, but if the application of that norm (art. 146
of the civil code of the Federal District) generates conflict in those states, it will be the local
courts that will define what to do in each case.57

MINORS AND FAMILY

There is ample evidence that shows that children raised by parents of the same sex perform
just as well as those raised by parents of the opposite sex. More than 25 years of research
document that there is no relationship between the sexual orientation of the parents and any
measure of emotional, psychological and behavioral adaptation of the minor. These data
have shown that there is no risk to children as a result of growing up in a family with one or
more gay parents.83 If gay, lesbian, or bisexual parents were inherently less capable than
other comparable heterosexual parents, their children would show problems regardless the
type of the sample. This pattern clearly has not been demonstrated. Given the consistent
failures in the research literature to demonstrate that the null hypothesis is false, the weight
of the empirical evidence falls on those who argue that children raised by sexual minority
parents have more problems than children raised by heterosexual parents.84 There is no
research to support the widespread belief that parental gender is important for children's
well-being.85

RELIGION

In the religious world there is no consensus on same-sex marriage, although most religious
denominations oppose it. Among them are the Catholic Church,105 some Baptist Christian
groups such as fundamentalist Baptist Christians,107 Protestant Christians in general,108
Mormons, Jehovah's Witnesses, Islam and the Lutheran Church.109 Among the churches
that marry couples Of the same sex are the Swedish Lutheran Church, the United Church of
Canada, the United Church of Christ, the Universalist Church, the Quakers, Reformed
Judaism, and various minority denominations of Hinduism and Buddhism. There are also
other churches that bless marriages or unions between people of the same sex, although not
with the marriage rite.

MARRIAGE

The dictionary of the Royal Spanish Academy defines marriage as the union of a man and
woman arranged for life through certain legal merits or formalities. This is regarding civil
marriage. Regarding canonical marriage, the dictionary itself states that it is a sacrament
proper to laymen, by which man and woman are perpetually bound in accordance with the
prescriptions of the church.

Theoretically, the age for marriage should be that at which the couple had reached puberty,
that is, the capacity to procreate; But, since this situation is different for each individual,
legislation has had to resort to the legal fiction that the sexual aptitude to celebrate nuptials
occurs automatically in women at a certain age and in men at another, puberty being in that
one more anticipated than in this one.

Effects of marriage

Marriage produces a series of legal effects between the spouses and against third parties, of
which the fundamental ones are marital obligations, kinship and the economic regime of
marriage. Furthermore, in most countries the emancipation of the minor contracting party is
produced by law, with which he is free from the parental authority of his parents and will
be able from now on to act as if he were an adult, even if he subsequently divorces.

Precisely, by the very fact that it is a contract, marriage gives rise to a series of effects, as
peculiar as itself. A general effect, and of a fundamental nature in this matter, is constituted
by the creation of a new state for the subjects: the marital state; generating a bond that is
more than just a kinship, since it is a more intimate union, a marital bond. This emerging
condition of spouses determines an interweaving of reciprocal rights and duties, also giving
rise to both personal and property relationships.

Regarding personal relationships, it is necessary to refer to the rights and duties of spouses,
mentioned above. These are enshrined in the Venezuelan Civil Code (CCV), which in its
article 137 establishes that:

.- With marriage the husband and wife acquire the same rights and assume the same duties.
From marriage derives the obligation of spouses to live together, remain faithful and help
each other.

.- A married woman may use her husband's surname. This right subsists even after the
dissolution of the marriage due to death, as long as a new marriage is not contracted.

.- The refusal of a married woman to use her husband's surname will not be considered, in
any case, as a failure to comply with the duties that the law imposes as a result of marriage.

.- Similarly, in the first section of article 139 it is contemplated that:

The husband and wife are obliged to contribute, to the extent of each one's resources, to the
care and maintenance of the common home, and to the burdens and other marital expenses.

Thanks to such provisions, it can be said that the Venezuelan legislator includes the
Principle of Equality of Men and Women within these regulations, since both assume
identical duties, which constitute rights enjoyed by the other. These duties will be of a legal
nature (they are enshrined in the law), ethical (they are entrusted to the affection and
conscience of the husband and wife), reciprocal (each of the spouses has them towards the
other, and of public order. (they are not relaxed due to the desire of the spouses).

It is important to highlight that the establishment of the marital domicile must be designated
in accordance with the mutual agreement of the spouses, as stated in article 140 of the
CCV.

Validity of Marriage

According to the Civil Code of Venezuela CC in its article 44 it typifies:

Marriage cannot be contracted except between one man and one woman. The Law does not
recognize any other marriage contracted in Venezuela except the one regulated by this
Title, being the only one that will produce legal effects, both with respect to people and
with respect to property.

For a marriage in Venezuela to be valid, it must comply with the corresponding

requirements established in section III of title IV, and the following are established:

Article 46

A woman who has not reached the age of fourteen (14) and a man who has not reached the
age of sixteen (16) cannot validly contract marriage.

Article 47

A person who suffers from manifest and permanent impotence cannot validly contract a
marriage.

Article 48

Nor can a person interdicted due to insanity or someone who is not of sound mind enter
into a valid marriage. If the interdiction has only been promoted, the celebration of the
marriage will be suspended until the judicial authority has decided definitively.

Article 49

For consent to be valid, it must be free. In the case of abduction, consent will not be valid if
it is not given or ratified after the person has been returned to full freedom. It is deemed
that there is no consent when there is error regarding the identity of the person.

Article 50

A marriage contracted by a person linked by a previous one is not permitted or valid, nor is
that of a minister of any religion to whom marriage is prohibited due to his or her
respective religion.

Article 51
Marriage between ascendants and descendants or between related people in a straight line is
not permitted or valid.

Article 52

Marriage between siblings is also not permitted or valid.

Article 53

Marriage is not permitted between uncles and nephews, nor between uncles and the
descendants of nephews. Marriage between brothers-in-law is also not permitted when the
one that produced the affinity was dissolved by divorce.

Article 54

The marriage of the adopter with the adoptee and his descendants, between the adopter and
the spouse of the adoptee, or between the adoptee and the spouse of the adopter, is not
permitted or valid while the adoption lasts.

Article 55

Marriage between a person convicted as a convict or accomplice of executed, frustrated or

attempted homicide against one of the spouses and the other spouse is not permitted or
valid. While the criminal trial is pending, the marriage cannot be celebrated either.

Article 56

A person accused of kidnapping, rape or seduction may not marry while the criminal trial
against him lasts and while he has not served the sentence to which he has been sentenced,
unless he celebrates it with the aggrieved woman.

Article 57

The woman cannot validly contract a marriage until after ten (10) months from the
annulment or dissolution of the previous marriage, except in the event that childbirth has
occurred before said period or she produces documented medical evidence from which it
results. that she is not pregnant.
Article 58

Marriage of the guardian or curator or any of his descendants with the person he has or has
had under his protection is not permitted, as long as, once the guardianship or curatorship
has expired, the accounts of his position have not been approved; unless the Judge before
whom the guardianship was established or the judge of the guardian's domicile, for serious
reasons, issues the authorization.

Article 59

A minor cannot marry without the consent of his or her parents. In case of disagreement
between the parents, or the impossibility of expressing it, it will be up to the Juvenile Judge
of the minor's domicile to authorize or not the marriage, after hearing the opinion of the
parents if possible. There will be no appeal against these decisions.

Article 60

In the absence of the father and mother, the consent of the minor's grandparents is required.
In case of disagreement, it will be enough for two of them to consent to the marriage. If this
is not possible, it will be up to the Juvenile Judge of the minor's domicile to authorize or not
the marriage, after hearing the opinion of the grandparents. There will be no appeal against
this decision.

Article 61

In the absence of parents, grandparents, the consent of the guardian is needed; If this does
not exist, the authorization of the Juvenile Judge of the minor's domicile will be requested.

Article 62

The age prescribed in article 46 will not be required:

1. To a minor woman who has given birth to a child or who is pregnant.

2. To a minor male when the woman he wants to marry has conceived a child that he
recognizes as his or that has been judicially declared as such.
Article 63

There will be no recourse against the refusal of consent by those called by the Law to give
it, unless the refusal is from the guardian, in which case the Judge of First Instance of the
minor's domicile may be approached to resolve what is appropriate.

Article 64

It is understood that the father, mother or ascendants are missing, not only because they
have died, but also for the following reasons:

1st Perpetual or temporary dementia, while it lasts.

2nd Declaration or presumption of absence, or stay in foreign countries from which a

response cannot be obtained in less than three months.

3º The sentence to the penalty that the disqualification entails, while it lasts.

4º Deprivation, by sentence, of parental authority.

Article 65

Civil Judges of First Instance can waive the impediment that exists between uncles and
nephews of any degree and between brothers-in-law. Annulment of Marriage

All those marriages that are carried out with some legal non-compliance regarding the
requirements that are demanded, are voidable, because marital annulment is an action that
is carried out against those marriages that suffer in their formation, the lack of an essential
element, but that In reality, they can be extended to those cases in which marriages are
celebrated without the intervention of the official authorized to perform the wedding, or in
the marriage in article of death it would have been contracted without witnesses or with
people not suitable to be witnesses. When it is celebrated between certain persons,
prohibited by the Civil Code (for example, non-emancipated minors), except in those cases
in which a dispensation has occurred, that is, authorization has been given, despite being
prohibited.

Requirements
The requirements are the same for absolute nullity and for relative nullity since it is
substantiated by the same ordinary trial procedures, but there are certain peculiarities to
which we refer:

a) Nature of the Action: Since the action of absolute nullity and relative nullity is
declaratory of denial or challenge.

b) Prior Publicity: When there is an action for marriage annulment, an edict is published in
a newspaper of circulation in the place where the court of the case has its headquarters, in
which precise information is given about the plaintiff's procedure.

c) Competent Jurisdiction: The Family Judge is the one who hears the action, with
jurisdiction in the place where the plaintiffs have their domicile.

d) Preventive Measure: When the claim for annulment of the marriage is filed, the court
may, at the request of the plaintiff or any of the spouses ex officio, if one of them is a
minor, order the separation of the spouses, the judge takes provisional measures. These are:

- Leaving the children in the care of one or both spouses, or under the care of a third party.

- Dictate the measures it considers appropriate, including provisional ones

e) Procedural Specialties: The representative of the Public Ministry must intervene in said
trial. The final decision of first instance must be consulted with the superior whenever the
claim is declared admissible.

f) Nature of the Sentence: the sentence must be declarative in nature; since it is limited to
recognizing the right existing between the apparent spouses prior to the trial.

g) Publicity of the Sentence: When the marriage annulment process is underway, the Judge
must pass a certified copy of the final sentence to the officials in charge where the Marriage
Certificate was recorded, so that the pertinent procedures can be carried out.

Absolute Nullity

Concept:
It thus refers to when the norm is violated in its celebration and that determines the
ineffectiveness of the bond, and that has been enshrined by law with the sole and exclusive
purpose of safeguarding public order.

Characteristics:

a) It does not prescribe or expire: Because the bond is not valid, if the corresponding action
were only exercised within a certain period, upon expiration of this period, it would in fact
produce a tacit validation of the irregular marriage.

b) It is not covalidatable: Because it cannot be subject to express or tacit validation. Public

order is interested in disappearing legal life and that is why it does not admit any legal
means that allows it to protect the bond of the judicial declaration of nullity.

c) Any interested party can take advantage of it: Because it can be sued judicially by any
person who has a legitimate and current interest and they are:

- The spouses themselves (Articles 117 and 122 of the Civil Code).

- The spouses of some of the parties (Article 122 of the Civil Code).

- The ascendants of the spouses (Articles 117 and 122 of the Civil Code).

- The prosecutor of the Public Ministry (Article 130 of the Code of Civil Procedure).

- Any person with legitimate and current interest (Articles 117, 122 and 123 of the Civil
Code).

Cases:

Violations of substantive or formal requirements of marriage are the following:

a) Violation of marital assumptions:

- Contractors of the same sex.

- Absence of consents.

- Absence of authorized official.

b) Violation of decisive impediments:

- Violation of impediment of previous marital bond.

- Violation of order impediment.

- Violation of kidnapping impediment.

- Violation of consanguinity impediment.

- Violation of affinity impediment.

- Violation of adoption impediment.

- Violation of crime prevention.

c) Violation of formalities in marriage in art mortis (Article 98 of the Civil Code):

- Insufficient number of witnesses.

- Unskilled witnesses.

Relative Nullity

Concept:

It consists of the legal norm violated in its celebration that determines the ineffectiveness of
the bond, and protects interests of public order and at the same time was consecrated by the
legislator as protection of the particular interest of one of the contracting parties or of both.

Characteristics:

Relative nullity allegable by all interested parties: there are three,

1) Marriage of incapacitated persons due to age (Article 117 of the Civil Code):

- Ownership of the annulment action: This is when the judicial declaration can be requested
by any interested party.
- Expiration of the cancellation action: It expires when any of the following events occur:

YO. When the parties reach the age required to validly contract the bond.

II. When the woman who is not of the legal age for marriage has conceived.

- Tacit validation of marriage: It is invalid for reasons of incapacity regarding the age of the
spouses, it is not susceptible to express validation; but it is the subject of tacit validation,
before the annulment action is filed, before it expires.

2) Territorial incompetence of the official: The relative annulment of the marriage is

provided for in the 2nd part of article 117 of the Civil Code, since in the aforementioned
case it only arises when the official who witnesses the marriage is authorized by law to do
so, but acts outside its territorial jurisdiction. Her CARACTERISTICS:

- Ownership of the annulment action: Corresponds to any authorized person.

- Expiration of the annulment action: It is one year after the marriage was celebrated.

- Validation of the annulment action: when the relative nullity action is attempted within
the immediate year following the celebration of the act, but it cannot be expressly validated.

3) Defect of witnesses: The ordinary marriage and the one regulated in the article of death,
celebrated without the assistance of the witnesses required by law is relatively null, article
117 of the Civil Code, 2nd part.

Relative nullity allegable by certain persons: There are other cases in which certain persons,
who are always the same and are:

1). Vices in marital consent:

Characteristics:

- Ownership of the annulment action: It only corresponds to the contracting party who
suffered the defect of consent.

- Expiration of the annulment action: The action expires if the parties cohabit for 1 month,
after the violence has ceased.
- Convalidation of marriage: The spouses can tacitly validate the marriage voidable due to
defects in the consent of its parties, maintaining cohabitation for one month, from the date
of the disappearance of the defect.

2). Incapacity of one of the parties due to lack of sanity:

- Ownership of the annulment action: They are the following:

YO. To the interdicted or insane contracting party, when he is rehabilitated.

II. To the guardian of the interdicted party.

III. To the other spouse (healthy and capable).

- Expiration of the annulment action: This is when the spouses cohabit for one month after
the revocation of the interdiction of the insane.

- Tacit validation of marriage: It is achieved with the cohabitation of the spouses for a
period of one month, from the date of the revocation of the interdiction of the incapacitated
person.

3). Incapacity of one of the parties due to lack of sexual potency (Article 119 of the Civil
Code): Characteristics:

- Ownership of the annulment action: It corresponds to the other spouse (not affected by
disability). The legislator wanted to leave the decision of the case to said spouse, who is the
only victim of the situation.

- The annulment action does not prescribe or expire: As it is an action for declaration of
status, it is not subject to the statute of limitations.

- The marriage is not validable: The marriage celebrated by the impotent person cannot be
expressly confirmed, since nothing is provided by law in this regard, nor is it susceptible to
tacit validation because annulment can be attempted at any time by the capable spouse.
Putative marriage:

Terminologically derived from putativus, reputed, considered such, it is the legal fiction by
which, even if a marriage is void, it is considered valid for the benefit of the spouse who,
when contracting it, had acted in good faith. There are antecedents in the opinions of Peter
Lombard, Hugh of Saint Victor and others, collected by some pontifical decisions and in
the Decretals of Gregory IX (title. III and XVII, lib. IV); in the CIC (can. 1015: "If at least
one of the spouses has acted in good faith when celebrating an invalid marriage, it is called
putative until both know with certainty of the nullity"); Part IV, laws 3a, title. 3rd and 2nd,
title. 15.

The marriage will be putative if, despite suffering from certain defects of the judicial
declaration of nullity, it produces, until it is final, full civil effects for the spouse or spouses
who were unaware of them at the time of celebrating it, and even after the same. for
children whose parents had known them. The latter (with a certain precedent in a rescript of
the emperors Marcus Aurelius and Lucius Verus, in the old Prussian Code and in some
provision of the Swiss) inspired by the aim of preventing innocent beings from becoming
victims of the guilt of others, constitutes very important innovation. transcendent with
respect to the traditional civil and canonical legal criterion, which always required good
faith, at least, of one of the spouses, to grant legitimacy to the children.

Good faith: consists of the subjective state of belief, on the part of one or both parties, at the
time of celebrating the marriage, that they contract it validly, even if there is an error of fact
or law, as long as it is excusable, the subsequent knowledge of the error being indifferent;
On the other hand, for Canon Law, marriage will cease to be putative from the moment the
spouses know the cause of nullity, so that children conceived after such knowledge are not
considered legitimate. Good faith is presumed, unless there is evidence to the contrary, the
proof of which is the responsibility of the person who challenges it.

Economic Regime of Marriage

Art. 148 CC: "Between husband and wife, if there is no agreement to the contrary, the
profits or benefits obtained during the marriage are common, in half." The preceding article
has made it clear that the community of property is a regime supplementary that grants half
ownership of the common property to the spouses. Later we will see to what extent what
the article establishes is true, because the article enshrines a "very general" statement that
all assets or profits obtained during the marriage are common, which is why we have to be
very precise, because there is a large amount of property that is acquired during marriage
that is NOT common but is OWN and is established by the Code itself, but what that article
does is entail a general idea of what the matter is; It would have been more accurate if he
had indicated: "those acquired for consideration" as opposed to those acquired for free,
since those acquired for "free", even after marriage are "own", as a rule; and those acquired
"onerous" title as a rule (because it also has exceptions) are "common." It is important to
keep in mind that not all assets acquired during the marriage are part of said community,
since, as we will see below, there are many assets that, despite being acquired during the
marriage, are their own (of the spouse who acquired them). ) Ex. Goods acquired free of
charge.

Regarding the property effects, there is the property regime in marriage, made up of the
group of rules that frames the economic aspects that arise from the spouses among
themselves or between them and third parties. These norms can be accepted by the
consensus of wills of both subjects, or otherwise, they are determined by the law itself.

This situation originates due to the marriage itself; Because although its original purpose is
non-pecuniary, in the permanent coexistence of two people a series of expenses that cannot
be postponed arise that need to be corrected. And although it has been previously said that
the duties of a man and a woman in marriage are equal, consequently both must bear the
expenses in a shared manner, since the economic support of the home falls on them;
including their personal care as well as care with people to whom they are obligated
(children, sick relatives, creditors, etc.).

When the couple decides to reach an agreement prior to marriage to regulate their assets
within marital life, we speak of Marital Capitulations. If this procedure is not carried out,
the law provides for a supplementary regime: the Limited Community of Gains.
Matrimonial Capitulations: are agreements made by the couple about to get married to
determine the treatment that will be applied to their assets, once the marriage has taken
place, and as to its duration.

These pacts are characterized by being bilateral (since they are made by both parties); They
are also accessories to the marriage (since they cannot be celebrated independently of it, if
the marriage does not take place or if it is declared null, the capitulations have no effect);
They are solemn (for their proper execution it is necessary to comply with the legal
formalities); They are very personal (just as marriage is, since they are carried out
exclusively by the couple); They are unappealably prior to the marriage (if they are not
previously agreed upon, they can no longer be so, with said union being subject to the
supplementary regime); and finally they are immutable (they cannot be modified after the
marriage is celebrated).

On the other hand, there is the supplementary legal regime:

The Limited Community of Property: this comes into play when the future spouses do not
exercise the right granted to them by law to choose their marital property regime, filling the
void that this lack of choice could cause.

It is enshrined in article 148 of the CCV which establishes:

Between husband and wife, if there is no agreement to the contrary, the gains or benefits
obtained during the marriage are shared in half.

Thus, the Limited Community of Property can be defined as a type of limited community,
constituted by the shared ownership of a set of assets, which are considered common to
both spouses; such assets being the profits or benefits obtained by any of them during the
marriage; maintaining that property apart from the existence (absolutely legal and obvious)
of each husband's own property.

Because it is special and generic, it has qualities that differentiate it from the
ordinary community of goods. Among these we can mention the fact that it can only exist
between spouses, being prohibited the universal profit partnership that arises between
people who do not enjoy this relationship (according to article 1650 of the CCV). The co-
ownership fees remain unchanged, corresponding to half of the profits (article 148 of the
CCV). It cannot be established prior to the celebration of the marriage (article 149 of the
CCV). Its systematization corresponds to the legal text, and never to the will of the parties.
And finally, it does not pursue lucrative purposes, but rather seeks the due fulfillment of the
obligations that marriage brings with it.

Then, within this community of property there are two sets of assets: those
belonging to each spouse, and those that become shared by both. The latter are made up of
the profits obtained from their work, as well as the returns (fruits, income and interest)
generated by common and own goods. Likewise, property acquired with other community
property constitutes community property.

Article 158. The right of usufruct or pension is part of the property of the spouse to
whom it belongs; but the pensions and fruits corresponding to the first twenty years of the
marriage correspond to the community in four fifths. From the age of twenty onwards, all
fruits and pensions correspond to the community.

Article 161. The assets donated or promised to one of the spouses, by reason of the
marriage, even before its celebration, belong to the community, unless the donor states
otherwise.

Article 163. The increase in value due to improvements made on the spouses' own
property, with community money, or by the spouses' industry, belongs to the community.

The assets of each of the spouses, that is, those that are not part of the community
assets, are expressed in the CCV as follows:

Article 151. The property of the spouses is that which belongs to the husband and
wife at the time of contracting the marriage, and which they acquire during the marriage by
donation, inheritance, legacy or by any lucrative title. Property derived from natural
accessions and the capital gain of said property, treasures and abandoned movable property
that one of the spouses finds, as well as clothing, jewelry and other belongings or objects
for personal or exclusive use of the woman or the husband, are also property. husband.
Article 152. The assets acquired during the marriage become the property of the respective
spouse:

1.- By exchange with other property belonging to the spouse.

2.- By right of withdrawal exercised over the property of the respective spouse and with
money from their assets.

3.- By dation in payment made to the respective spouse for obligations arising from one's
own property.

4.- Those acquired during the marriage for consideration, when the cause of acquisition has
preceded the marriage.

5.- Compensation for accidents or life insurance, personal injury or illness, deducting the
premiums paid by the community.

6.- For purchases made with money from the sale of other property of the acquiring spouse.

7.- For purchases made with the purchasing spouse's own money, provided that the origin
of the money is stated and that the purchase is made for themselves.

In case of fraud, the actions of the injured parties to have the acquired property declared
judicially as to whom corresponds.

It is essential to mention the assumption of Copyrights, because these remain the property
of the spouse who produced them through their intellectual activity, even when they have
been acquired during the marriage.

The economic maintenance of the home alone does not revolve around the properties and
transactions of the spouses; Both must also bear (half) the so-called common burdens,
constituted by the responsibilities or debts acquired by either of the spouses or both, but
which due to their origin should not be borne individually, but in community, as indicated
in the articles. 165 and 166 of the CCV.
Ordinary Community and Community of Profits:

ORDINARY COMMUNITY

PROFIT COMMUNITY

Location: Art. 759 to 770 CC.

Art. 148 to 183 CC.

Number of owners: There are several owners of a single asset and each community member
is the owner of a certain percentage of the asset (it can be 1%, 10%, 20%, etc.), but the
community as such is the owner of the asset. as a whole Ex. The heirs are commoners of
the property they have inherited.

There can be as many community members as you want.

Theoretically there can only be two owners (the spouses) of the assets that make up the
community and the proportion will ALWAYS be half (each one owns 50% of the
community assets). Exception: Putative MarriageEx. The Muslim man who in good faith
believes that polygamy is accepted in our country and marries two women. According to
the professor, in this case the first wife should not be harmed by the second marriage, so the
percentage of ownership of the assets would be like this: First wife 50%, Man 50% divided
between him and the following wives, if there are two wives the man and the second wife
would own 25% of the assets each.

Disposal: Community members can freely dispose of their share of the property. Ex. If I
own 25% of a property, I can take that part and sell it, assign it, donate it, etc.

In principle, community property is not freely available. For example, to sell community
property I need my husband's authorization.

Administration: Unanimity is required among the community members for decisions

corresponding to the administration of the assets.

Later we will see that the administration of the couple's common property is handled in a
manner other than unanimity.
Extinction: Subsists after the death of the community members, because the heirs can take
their place in the community.

It is extinguished with death.

Source: The sources of the ordinary community are very varied: donations, inheritances,
joint purchases, legacies and others.

The only source of the community of property is Marriage.

The ordinary community is viewed with a bad light by the legislator, proof of this is found
in some of the limitations that exist in its regulation (such as that they cannot be agreed for
more than 5 years), on the other hand, they are normally impractical from the economic
point of view, since with the passage of time the number of community members tends to
be greater, until, at a certain moment, each community member receives only a small
portion of the money for their share.

The marriage regime is totally logical because the couple seeks to maintain, at least in
principle, the rest of their lives in community and just as they have duties of assistance and
help among themselves, it is hardly logical for the spouses to maintain some assets in
community, since , they share a community of life.

Society and Community of Profits:

SOCIETY

PROFIT COMMUNITY

It is a contract that, among other things, pursues profit purposes.

Already in the first section we made it very clear that marriage is not a contract and, as
expected, it is not of its essence that it pursues any purpose of profit.

They can and usually do acquire legal personality.

It does not have legal personality, it is two assets in which there are common assets and
own assets.

They are formed by mutual consensus and are extinguished by mutual dissent, that is, the
autonomy of the will of the parties is respected.

Marriage is formed consensually, but it cannot be dissolved in the same way, and its rules
are usually public order.

Each partner will receive profits in proportion to their property Ex. If I own 30% of the
property, in that same percentage I will receive the profits received by the company.

Each spouse receives 50% of the profits received by the community of property and it is
something that cannot vary.

They are not extinguished due to the death of the partners.

It is extinguished by the death of the spouses.

The administration of the company is carried out by agreement between the partners.

The administration of the community is governed by the civil code.

First universal societies are not permitted apart from Art. 1650 CC: "Any partnership is
prohibited on a universal basis, whether of present and future assets or of one or the
other...".

Universal profits are allowed for the community of property Second apart from Art. 1650
CC: "Any universal profit partnership is also prohibited, except between spouses...".

They are mutable, that is, they can undergo modifications, as long as they are agreed upon
by the partners.

The community of property cannot be modified and is strictly governed by the Civil Code,
it is immutable.

Dissolution of the Community

When the community is extinguished, the regime ceases to produce its patrimonial effects.
In principle, the Community of Property is only extinguished with the extinction of the
marriage, but in exceptional cases it may occur that it is dissolved without dissolving the
marriage. It is important to highlight that the Community of Profits will only be dissolved
for the causes strictly established in the law, causes that are also of restrictive interpretation.
The community is also extinguished by the declaration of nullity of the marriage; When
there is a putative marriage, the community produces full effects until the declaration of
nullity. If one of the spouses is in good faith, the marital property corresponds to that one; if
both are in bad faith, it corresponds to the children, and if there are no children, it will
correspond to both of them. by half Art. 173 CC: "The community of property in a
marriage is extinguished when it is dissolved or when it is declared null. In the latter case,
the spouse who has acted in bad faith will not have a share in the marital property.

If there is bad faith on the part of both spouses, the marital property will correspond to the
children, and only in their absence, to the spouses.

The community is also dissolved due to the declared absence and bankruptcy of one of the
spouses, and due to the judicial separation of assets, in cases authorized by this Code.

Any voluntary dissolution and liquidation is void, except as provided in article 190."

Extinction Cases:

· Dissolution of marriage: The marriage is extinguished when the marriage is dissolved,

either by the death of one of the spouses or by divorce, but in this case it is necessary that
the sentence expressly declare the extinction of the community.

· Nullity of marriage: It will be grounds for extinction of the community when the
annulment is declared by a definitively final sentence, even when the sentence does not
expressly declare it.

· Declared absence of one of the spouses: This is a point that will be explained calmly
because we must be careful with it. In principle we will say that for the community to be
extinguished in this way, the absence must be declared (when there are reasonable doubts
about the life or death of the person) by a definitively final sentence, the presumption of
absence will not be enough.

Non-presence exists when the person has been missing for less than two or three years. If
the person left an agent, he or she will represent them, since it is presumed that this is the
person they trust and that if they left an agent it is because they planned to be absent for a
certain period. time. After two or three years of the Non-presence, the heirs may request
that the declaration of absence be made, if the person left an agent, they must wait three
years and if they have not done so, waiting two years will be enough Art. 421 CC: "After
two years of presumed absence or three, if the absentee has left an agent for the
administration of his assets, the presumed intestate heirs and contradictorily with them the
testamentary heirs, and whoever has over the absentee's assets rights that depend on his
death, can ask the Court to declare his absence".

The declaration of absence produces important effects regarding the administration of the
assets, among them, the provisional possession of the assets is delivered to the presumed
heirs Art. 426 CC: "Once the sentence declaring the absence has been executed, the Court,
at the request of any interested party, will order the opening of the acts of last will of the
absent person.

The heirs of the absentee, if he had died on the day of the last news of his existence, or their
heirs, may ask the Judge for provisional possession of the assets.

Also, all those who have rights over the assets of the absentee that depend on the condition
of his death, may request, contradictorily with the heirs, that they be granted the provisional
exercise of those rights.

Neither the heirs nor the other persons previously indicated will be put in possession of the
assets or in the exercise of their eventual rights, but by giving mortgage, pledge or trust
security, for an amount to be set by the Judge, or by any other precautions. that he deems
appropriate in the interest of the absentee, if the security cannot be provided.
The presumption of death occurs after 10 years of absence of the person, in which case: If
the spouse of the absent person marries, the marriage is not void, unless the existence of
bigamy is proven or the absent person appears, this happens because the presumption of
death does NOT extinguish the marriage Art. 434 CC: "If the absence has continued for ten
years since it was declared, or if one hundred years have passed since the birth of the absent
person, the Judge, at the request of any interested party, will declare the presumption of
death of the absent person, will agree to the definitive possession of the assets and the
cessation of the guarantees that have been imposed. This determination will be published in
print." Our Code also establishes the so-called Presumption of death by accident, which
takes place when the person has disappeared after a catastrophe has occurred (Ex. Vargas
Landslide), which is why the time required for its declaration is shorter and its declaration
produces the same effects as the declaration of absence Art. 438 CC: "If a person has been
found in a shipwreck, fire, earthquake, war or other similar accident, and as a result of this
there has been no news of his existence, it is presumed that he has died. This presumption
will be declared by the First Instance Judge of the domicile, at the request of any presumed
intestate or testamentary heir, or whoever has possible actions that depend on the death of
that person, after verification of the facts.

The request will be published in the press for three months, with intervals of at least fifteen
days. After this period, the evidence will be evacuated and the resulting declaration will be
made."

· Bankruptcy of one of the spouses: In the event of bankruptcy, the administration of the
assets of the bankrupt is the responsibility of the creditors and, logically, it does not make
any sense for the community to subsist, which is why, once one of the spouses is declared
In bankruptcy by definitively final judgment, the community is extinguished.

· Judicial Separation of Assets: According to the professor, this judicial separation occurs in
three cases: Separation by mutual agreement, separation by judicial action and due to poor
administration of assets by one of the spouses.
· Irregular administration of common property: When one of the spouses irregularly
administers the common property, the other can go before the judge to inform him or her of
the situation and for him to take the measures he considers appropriate. If the measures
agreed upon by the judge are not sufficient, the other spouse can request the separation of
assets, which will be processed by the Ordinary Procedure (the libel of the claim must be
registered, because if the judgment declares the action admissible, the effects are counted
from the registration of the libel) Art. 171 CC: "In the event that one of the spouses exceeds
the limits of a regular administration or recklessly risks the common property that they are
administering, the Judge may, at the request of the other spouse, dictate the orders that he
deems leading to avoid that danger, prior knowledge of the cause. An appeal will be heard
from what has been decided in a single effect, if the measures are agreed upon, and freely,
otherwise. If the measures taken are not sufficient, the injured spouse may request
separation of property."

Effects of the Dissolution of the Community:

The main effect is that the community of property is replaced by an ordinary community,
between the spouses or ex-spouses (remember that it can be dissolved while the marriage
subsists) or their heirs. This ordinary community is governed by the provisions relating to
the ordinary community and only ends with its liquidation. It is possible that we are
referred to the rules for the division of inheritances, this is so, because the community of
property is a supplementary regime. .

· The community of the fruits of one's own property disappears.

· Everything acquired by the spouses through their work is their own.

· The community is replaced by an ordinary community.

· Limitations regarding the disposition of assets, inheritances and legacies cease.

· In principle, the situation is maintained vis-à-vis third parties, because the debts are not
divided.

· The duties towards the family and the right to alimony between the spouse remain.
Liquidation of Common Property:

When the conjugal community is liquidated, the rights over the common assets are no
longer halved and what is sought is for each spouse to keep the entirety of a certain group
of assets, sacrificing others. Ex. The couple had apartments 1 and 2, of which each spouse
was the owner of 50%. When the community was liquidated, an apartment would be given
to each spouse, with which each one would be the owner of 100% of one of the apartments,
sacrificing the other. The professor clarifies that this is not an operation as simple as seen in
the previous example, since the assets of the spouses are usually heterogeneous (made up of
different types of assets).

Art. 768 CC: "No one can be forced to remain in community and any of the participants can
always demand partition.

However, the agreement that one must remain in the community for a certain period of
time, no more than five years, is valid.

The judicial authority, however, when serious and urgent circumstances require it, may
order the division of the common property, even before the agreed time." Whoever intends
to take part in a partition trial will require full capacity, since this involves acts of
disposition.

Characters of the settlement:

· Either spouse has the right to demand the division of common property, since no one can
be forced to remain in community and we know that, when the community of property is
dissolved, it is replaced by an ordinary community.

· The liquidation and partition of the dissolved community of property is an act of

disposition, which requires the full capacity of the parties. If any of them are incapable,
they must be represented, assisted or authorized according to the protection regime that
corresponds to them.
· The liquidation of the extinct community of property can be done judicially or
extrajudicially.

Liquidation stages:

.- Inventory preparation: Firstly, the common assets (movements, real estate and credits
against third parties) are determined and valued, including, for example, the fruits produced
by the assets of each spouse that contribute to forming the common assets. Then the
common liabilities are determined, that is, the common debts that have not been satisfied by
the time of liquidation. In determining the liabilities, the uncompensated common charges
must be taken into account. For example. The case of the operation of one of the children
paid entirely by one of the spouses. Finally, liquid assets are determined, that is, the
difference between assets and liabilities.

.- Formation of Lots: These are formed by integrating groups of assets that must be
awarded as exclusive property to each of the spouses. In principle, the two lots should be
equal, so as not to harm any of the spouses, the problem is that it cannot always be done
this way (because for example the spouses had only one house, which is worth more than
all the other assets. ), therefore it has been concluded that the lots must be equivalent in
economic value and types of goods. If one of the spouses is owed compensation for having
paid joint debts with their own property, it must be given to them; If one of the spouses has
assumed a common burden against a third party, he or she is personally responsible for his
or her debt and sufficient income must be included in his or her lot to satisfy it. There is a
figure known as lasvueltas, which are used when people do not agree. For example. If lot A
is worth 50 million more than lot B, I can pay my ex-spouse 50 million of my own money,
so I can keep said lot. This happens if I have a special interest in some assets that were
awarded to the other.

.- Allotment of Lots: It is the attribution in exclusive ownership to each of the community

members, of the assets that make up their lot. The partition can be friendly or judicial.
When it is amicable, the transfer of ownership of each lot to its successful bidder occurs
with the final approval of the partition. When this is judicial, the transfer of property occurs
when the court declares the partition completed and sealed.
Effects of liquidation:

.- Cessation of the state of indivision. Each spouse or ex-spouse becomes the exclusive
owner of the assets that make up their lot.

.- Declarative effect of the partition. It is presumed that each party becomes the exclusive
owner of the assets constituting its partition lot, with effect from the date of the dissolution
of the community and that, since then, it had no right over the assets that make up the
other's portion.

.- Guarantee of the lots. The spouses or ex-spouses owe each other compensation for
evictions and disturbances arising from causes prior to the partition, unless the eviction is
verified through the fault of the person who suffers it. The existence of the credits and the
solvency of their debtors are also guaranteed.

.- If any of the parties is harmed by more than a quarter in the partition, they have the right
to request Rescission due to Injuries (an institution that tends to disappear, because it
causes great legal uncertainty, since ultimately no one knows how much a good) Ex. If I am
going to sell something for 100Bs it seems to me that it is cheap, but if I am going to buy it
at that price it seems to me that it is expensive Art. 1,120 CC: "Partitions can be terminated
for the same reasons that give rise to the termination of contracts.

There may also be room for rescission when one of the co-heirs has suffered an injury that
exceeds one-fourth of his share in the partition. The simple omission of an object of
inheritance does not give rise to the action of rescission, but rather to a supplementary
partition.

.- Art. 179 CC: "If the community is reestablished, its effects are as if the separation had
not taken place, without prejudice to the rights acquired by third parties during the
separation. The restoration must be recorded in a registered instrument. In any case, the
rights acquired by third parties in good faith during the intervening time are always
protected. Regarding the possibility of reestablishing the community, there is a great
discussion in the doctrine:
Isabel Grisanti, Dominici and Barrios Guzmán: They consider that the conjugal community
can be reestablished in any case that has been dissolved for reasons other than the
dissolution of the marriage (due to death or divorce), and its annulment. Such a possibility
is imposed because, once the obstacles that determined its dissolution have disappeared, it
is natural that the community can re-emerge. Consequently, according to this position,
whenever the community has been dissolved, with the marriage subsisting, it can be
reestablished. It is understood that this is in case of absence, rehabilitation of the failed
spouse or dissolution of the community by final judgment and separation of assets.

López Herrera: they consider that the community of property cannot always be
reestablished after it has been dissolved and that this applies only when the cause of its
extinction was the separation of assets between the spouses due to irregular administration
or when said separation of assets results from the sentence definitive and firm that declares
the separation of bodies and property or the judicial decree of separation of bodies and
property, issued with a view to the request made by the spouses by mutual agreement.

The proof of marriage: The proof of marital filiation involves proof of its four elements,
which are: the marriage certificate or certificate (to prove that the child comes from the
married couple), maternity, paternity and conception. of the child during the marriage Art.
213 CC: "It is presumed, unless proven otherwise, that conception took place in the first
one hundred and twenty-one (121) days of the three hundred (300) days preceding the day
of birth."

Art. 214 CC: "The possession of child status is established by the sufficient existence of
facts that normally indicate the filiation and kinship relations of an individual with the
people identified as his parents and the family to which he claims to belong.

Chief among these facts are:

· That the person has used the surname of the person they claim to have as their father or
mother.

· That they have treated him as a son, and he, in turn, has treated them as father and mother.
· That he has been recognized as the son of such people by the family or society." On the
occasion of this article, the professor recommends that we review again the elements of
possession of status and indicates that it occurs when a person behaves as if he were the
owner of such a state. For example, Luis behaves as if he were the son of Andrés and
María, although in reality he is not.

THE DIVORCE

Divorce is the legal figure that annuls the existence of a marriage, celebrated between two
people.

The following are exhaustive grounds for divorce in Venezuela (185 CC):

1). adultery

2). Voluntary abandonment

3). Abuse or serious offenses that make life together impossible

4). The attempt of one of the spouses to corrupt or prostitute his or her husband or wife or
children or complicity in such act

5). Being convicted of committing a serious crime

6). Addiction to alcohol or drugs, when this situation makes life together impossible

7). The mental incapacity of one of the spouses due to serious psychiatric disorders that
make life together impossible.

The types of divorces in Venezuela are:

1- Separation of Bodies and Assets by mutual agreement

2-. Divorce 185-A (fast or express)

3. -Divorce or Contentious Lawsuit

In the cases of international divorces, the marital bond is dissolved by a foreign court,
however, for the sentence to have legal effects in Venezuela, a legal pass or exequatur must
be requested before the Supreme Court of Justice, in case of contention. or before a
Superior Court if there was no contention.

Competent Courts:

a) Courts for the Protection of Children and Adolescents. When it comes to divorces with
children (Boys, Girls and Adolescents) (art. 177 The Organic Law for the Protection of
Children and Adolescents)

b) Municipal Courts for cases where there are no children (Boys, Girls and Adolescents)

Finally, divorce procedures in Venezuela directly entail the cessation of life together, the
extinction of the economic regime of marital property, the revocation of the powers of
representation (if any), the use and enjoyment of the marital home for one of the spouses,
the parental authority of the minor children, as well as custody and, finally, the
establishment of alimony in favor of the children born in the marriage and the
compensatory pension in favor of one of the spouses, if proceed.

BRIEF DIVORCE 185-A

MODEL

CITIZEN

FIRST INSTANCE CIVIL JUDGE OF

HIS OFFICE

We _______ and _______, spouses, of legal age, of this address. of nationality _______
and profession _______, the first and the second _____ respectively with Identity Cards
Nos. _______ and _______, respectively, assisted in this act by Doctor _______ practicing
lawyer, and also of this address, registered in the Inpreabogado under No. _______, before
you with the permission of style, we occur to state: We were married before the First Civil
Authority of _______, on date _______, as recorded in the Marriage Certificate that we
accompany marked “A”. From this union we procreated two children named _______, and
_______, of _______, and _______, years respectively, according to the Birth Certificates
that we accompany marked “B” and “C”, which show that both are older than five years.
After contracting the pre-appointed marriage, we established our marital domicile in this
city at the following address _______, where we lived uninterruptedly until our marital life
was interrupted in the month of _______, year _______ and to date we have not resumed it,
therefore that we decided not to continue with a relationship, where life together was not
and is not possible, having unfortunately turned into a prolonged and definitive breakup of
it.

Regarding the pre-named minors _______, and _______, we have mutually agreed on the
following: 1) Both will remain under the custody of their mother. 2) The father will pay
them as alimony the amount of _______ Bs. monthly. 3) Parental authority will be
shared between father and mother. 4) The father may visit his minor children at any time of
the day, as long as it does not interrupt their school work. As for Christmas, they will be
spent with the father, and the New Year and the Three Kings will be spent with the mother,
alternately. As for Holy Week and Carnival, when Easter is spent with the father, Carnival
will be spent with the mother, both things alternately year after year. Father's Day will be
spent with the father. They will spend Mother's Day with their mother. Their birthdays will
be spent with their mother and their father will attend the meeting held on those occasions.
As for the school holidays, they will be divided exactly in half; the first half will be spent
with the father, and the second half will be spent with the mother.

As for Assets to be liquidated, there is no liquidation since there are no community assets in
our marital community. We ask that this request be admitted and substantiated in
accordance with the law, and finally, our divorce declared with all the Pronouncements of
Law, all in accordance with Article 185-A of our Current Civil Code. It is Justice that we
expect in the city of _______, on the _______ day of the month of _______, in the year
2000.

OBSERVATION:
This request must be made by the spouses when they have been separated for five years,
that is, without common marital life. It is a recent reform of the National Civil Code, and
this request is also called, Demand or Divorce Document.

Article 185-A of the Civil Code: “When the spouses have remained separated, in fact for
more than five (5) years, either of them may request a divorce, alleging a prolonged rupture
of their life together.

A certified copy of the Marriage Certificate must be attached with the application.

If the application is submitted by a foreigner who married abroad, proof of residence for ten
(10) years in the country must be provided.

Once the request is accepted, the Judge will issue summonses to the other spouse and to the
Prosecutor of the Public Ministry, also sending them a copy of the request.

The other spouse must appear personally before the Judge at the third hearing after being
summoned. If he recognizes the fact and if the Prosecutor of the Public Ministry does not
object within the next ten hearings, the Judge will declare the divorce in the twelfth.
hearing following the appearance of the interested parties.

If the other spouse does not appear personally or if upon appearing he or she denies the
fact, or if the Prosecutor of the Public Ministry objects, the procedure will be declared over
and the file will be ordered to be archived.

SEPARATION OF BODIES

MODEL

Citizen

First Instance Judge for the Protection of Children and Adolescents

From the Judicial District of the Metropolitan Area of Caracas

His office.-

We, xxxxxxxxx and xxxx, Venezuelans, of legal age, domiciled in Caracas, spouses,
holders of Identity Cards Nos. xxx and xxx, respectively, assisted in this act by
----------------------------------, practicing lawyer and registered with the Lawyer's Social
Welfare Institute under No. ----------, before you we respectfully appear to present:

It consists of a certified copy marked with the letter "A" attached to this document, that we
were married before the Prefect of the Autonomous Municipality of Chacao of the State of
Miranda, on August 11, 1993, as recorded in the marriage certificate issued therein. date.
From said marital union we procreated two (02) children named xxxx, who was born on
January xx, xxxx, and xxxx, who was born on xxxx, which is evidenced by certified copies
of the birth certificates marked with the letters "B and C" we accompany this request.

Now, citizen Judge, by mutual and common agreement we have agreed to separate
ourselves from bodies and property, in accordance with the provisions of article 189 of the
Civil Code. The separation agreed upon by us will be governed by the following
provisions:

OF THE CHILDREN

CUSTODY. GUARD AND CUSTODY.

VISITING SCHEDULE

FIRST: The spouses will jointly exercise parental authority over the children born in the
marriage.

SECOND: The minor children will remain under the care and custody of the mother, who,
without prejudice to what is established for the benefit of the father's rights, will exercise it
until he reaches majority.

THIRD: The citizen already identified will deposit the fifteenth and last day of each month
the amount of bolivars (Bs. ) in the Juvenile Court of the Judicial District of for child
support for their minor children equivalent to thirty-three percent (33.33%) of their income.
Said amounts will be withdrawn by the mother of said minors, the citizen or by whomever
she sufficiently authorizes. This amount will be increased in the event that the obligor
enjoys an increase in his or her income, since he or she is aware that the older the children
grow, the more needs they have. Both parents will be responsible, jointly, for all
extraordinary and non-periodic expenses, such as medical and dental care, school fees,
obtaining supplies and school uniforms.

FOURTH: The citizen already identified may visit the minors at the indicated address or at
the one indicated in case of change, on the days and in the manner determined here: Two
alternating weekends per month, but always taking them to sleep with their mother, unless
she takes them for a walk or excursion and with prior notice to the mother of said minors so
that she can retain them that night from Saturday to Sunday, and return them Sunday at six
in the afternoon. Father's Day will be spent with their father, and Mother's Day will be
spent with their mother. As for Holy Week and Carnival they will be alternated, the first
year it will be Carnival for the father and Holy Week for the mother, the second year it will
be Carnival for the mother and Holy Week for the father. and so on alternating each year,
the same with Christmas, New Year and Three Kings: The first year they will spend
Christmas with the mother and New Years and Three Kings with the father, the second year
they will spend Christmas with the father, New Years and Three Kings with the mother and
so on, alternating each year until they come of age. As for the school holidays, the first half
can be spent with the father and the other half with the mother.

II.- ASSETS REGIME

FIFTH: Upon contracting marriage, both spouses declare that there is no community of
property, no obligations or benefits in charge of or in favor of one or the other spouse and
that nothing has to be claimed for any other reason, except the obligation stipulated in this
document. During the term of our union, the following assets were acquired:

ASSETS

1.- An apartment, distinguished with No. -------, located on Floor ---- of Building
--------------, located on ---- -------------------------------------------------- -Miranda. Said
apartment has an approximate area of ------------------------------------- (----- -----Mts2). The
property in question is under the possession of the spouses, and which was acquired by both
spouses, as evidenced by a document registered on the day---- of ----------- of ---- ------
under No.---------, folio-----, Volume------, Protocol---------, in the Subaltern Office of
--------------- and whose boundaries, measurements and other specifications appear in the
aforementioned document marked “C”, a certified copy of which is attached. The
previously identified apartment was acquired for the price of ------------------(--------),
owing the spouses the sum of ------ -------------------(----), which includes the capital plus
interest. Each of the spouses retains fifty percent (50%) of the assets of the property, and at
the same time, each of them is obliged to pay fifty percent (50%) of the amount of ------
------------------(--------). Once the balance of the price owed on the marital property has
been paid, each of the spouses retains fifty percent (50%) of the ownership of the
apartment. Apart from this marital asset, we acquired a vehicle Plate ------, Bodywork
serial-------------. Brand-------------, Model:------------, Type:------------------ --,
Use:--------------, Colors:------------- Engine Serial:-------- ------------, which is in the name
of the spouse-------------------------- , as evidenced by the vehicle registration certificate
issued by the Autonomous Service of Transportation and Land Transit of the Ministry of
Transportation and Communications--------------, marked with the letter “R”, Both spouses
declare that said property is in perfect and excellent condition, nor does it weigh any type
of encumbrance.

2.- The furniture acquired for the residence of the common household, which is located in
said apartment with an estimated value --------------------------- ---- (----------)..

PASSIVES

1.- The amount of---------------------------------- (Bs.------ -----------) owed

to---------------------------. as a loan, as evidenced by the document.

The assets identified above have been valued by common agreement in the total amount of
--------------------------------- - (Bs.-------------), resulting from the sum of the individual
values assigned to each of said assets. The total amount of liabilities borne by the conjugal
community on this date amounts to -------------------------------- ---------------------
(Bs.-------------------).

SIXTH: The citizen MARIO RAMON VASQUEZ RUBIO, expresses his willingness to
transfer his FIFTY PERCENT (50%) of the assets canceled up to the moment of the
apartment described in ordinal 1 of the particular relating to the assets of the conjugal
community to his two minors and only children named ALEJANDRO MIGUEL, who was
born on January 10, 1997, and ANDREA CAROLINA, who was born on November 30,
1999.

The citizen MARCELA JANETT CORTES DE VASQUEZ, undertakes in a period of no

more than SIX (06) MONTHS, to pay to the citizen MARIO RAMON VASQUEZ RUBIO,
the amount of --------------- bolivars (Bs.--------), which is equivalent to FIFTY PERCENT
(50%) of the sale of my jewelry and valuable items.

Both spouses express their will that the vehicle License Plate ------, Body Serial-------------.
Brand-------------, Model:------------, Type:------------------ --, Use:--------------,
Colors:------------- Engine Serial:-------- ------------, which is in the name of the
spouse-------------------------- , will be the subject of a sale carried out by mutual agreement
between both community members, and whose product will be distributed between them in
percentages equal to FIFTY PERCENT (50%) for each one, in a period of no more than
one month and which will be under the sole responsibility of the spouse in charge of said
sale.

With the previous adjudications, we have agreed to liquidate, divide and dissolve the
community of property existing between us due to the marriage and we ask the citizen
Judge that, when decreeing the requested separation of bodies and property, he please agree
to it, in accordance with what provided in article 189 of the Civil Code.
Posted by tibiveliz72 at 11:29

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2 comments:

ROSA VILLARROELSeptember 29, 2015, 18:12

GOOD EVENING I WOULD LIKE TO READ A DOCUMENT WHICH DETERMINES

THE REGIME OF THE COMMUNITY OF COMBINATION IN COMBINATION. OR
CONCUBINARY CAPITULATIONS

Reply

Leonor PadronJanuary 2, 2017, 1:28 p.m.

Good afternoon, I would like to know if the liquidation of the ordinary community did not
occur due to lack of motivation on the part of the party that sued for divorce and after 32
years the ex-spouse dies and the plaintiff now wants to claim her 50% of an asset that was
acquired 4 days after marriage (50%) and two years after she leaves him she acquires the
other 50%

Reply

CONSTITUTIONAL CHAMBER

Magistrate-Speaker Dr. JECR

On December 9, 2004, the lawyer AFGU, registered in the Lawyer's Social Welfare
Institute under No. 57,999, acting as legal representative of the citizen CARMELA
MAMPIERI GIULIANI, holder of identity card No. 6,282,745, requested the interpretation
of article 77 of the Constitution of the Bolivarian Republic of Venezuela.

On the same occasion, the Magistrate who, in that capacity, subscribes to this ruling, was
appointed as rapporteur.

By decision issued on April 22, 2005, this Chamber admitted the appeal for interpretation
filed and, consequently, ordered to notify the Prosecutor of the Public Ministry, so that,
within five (5) days of dispatch following said notification, he would record -if considered
necessary- a document containing the arguments regarding the meaning and interpretation
that must be given to article 77 of the Constitution. Likewise, it was agreed not to hold an
oral hearing, since the Chamber will decide exclusively based on what is in the record.

Once the orderly notification has been carried out and the period established in the
aforementioned decision has elapsed, the Chamber will decide on the merits of this appeal,
in the following terms:

Yo

OF THE INTERPRETATION REQUEST

The applicant's legal representative based his appeal on the following:

1.- That the Ninth Court of First Instance of Family and Minors of the Judicial District of
the Metropolitan Area of Caracas on March 7, 1995, recognized the character of his client
as concubine of citizen SOIL ACKOSKI, with whom he had a relationship. non-marital
union for 23 years.

- That by virtue of the fact that article 77 of the Constitution extends the effects of marriage
to stable de facto unions and said effects are regulated by the Civil Code, one of the civil
effects of marriage being the optional right of women to use the last name of her husband
as long as she does not remarry in the event of becoming a widow, she indicated that she
could, in her capacity as a common-law wife, use the last name of her common-law partner
and proceed to change her identification document in accordance with the provisions of
articles 11 and 12. of the Organic Identification Law.

- That article 77 of the Constitution equates marriage to stable de facto unions between a
man and a woman, which meet the requirements of the law, establishing that both
institutions in unison, understood as a family, will have and produce with respect to their
members the effects established in the Law. He indicated that, “(prior to the recognition of
the aforementioned values in the constitutional norm, our legislation constituted a clear
example of incongruence between abstract law and social reality, with notable delays
compared to modern doctrine and with skimpy and late advances. in the matter. These facts
are reflected in the reform of the Civil Code of 1982, in which the family scheme was
modified in favor of a plural system in which the woman and children who constituted a
family were included, even when this occurred outside of marriage. In this sense, article
767 of the Civil Code was modified, recognizing de facto unions as a consequence of an
existing social reality.”

- That, from the provision of article 77 of the Constitution, it is unquestionably deduced

that the concubinal union is equated with marriage, with respect to the effects that it
produces, as long as the former complies with the requirements of the law, since Both
constitute expressions of the concept of family.

- That, from the analysis of said norm, it is concluded, “(...) firstly, that a prior requirement
must be met, such as the determination of compliance with the requirements established in
the law. We infer that the requirements referred to in the standard are those applicable to
the provision of article 767 of the Civil Code.” He pointed out that “(...) to determine what
these effects are, current and applicable, the interpreter must necessarily refer to the rules
that govern the effects of marriage, that is, the provisions of the Civil Code as a positive
order that especially regulates that subject".
- That, in accordance with what was expressed by the Constituent Assembly, article 77 of
the Constitution is of preeminent application to any subordinate norm and requires an
interpretation in accordance with its purpose. He maintained that in that same sense, the
Social Cassation Chamber of this MT, in a ruling of November 13, 2001 (Case: M.
delC.LM) and the Civil Cassation Chamber on November 15, 2000, ruled that:

In effect, for the presumption of community to operate, in accordance with article 767 of
the Civil Code, the woman must prove; that assets were acquired or increased during the de
facto union; and that during the time in which the estate was formed or increased, she lived
in permanent concubinage with the man against whom she asserts the presumption in her
favor established by article 767 eiusdem. The formation or increase of assets is a real thing,
community assets, it does not matter if they exist documented in the name of only one of
the cohabitants, is part of what is requested; Therefore, it is enough to demonstrate its
existence, as the respondent did. The cause, that is, the reason for requesting it, consists of
the permanent concubinary union, with respect to which there is an allegation of facts and
the respective evidence in the record, but which were not exhaustively analyzed by the
respondent.

7.- That, “(...) as the Constituent Assembly also pointed out, all these rights (that is, the
social and family rights referred to in Chapter V), constitute the fundamental basis of the
new legal system in which the "Life, ethics, freedom, justice, dignity, equality, solidarity,
commitment, citizen duties and legal security are values that come together in the
transformative action of the State." To then affirm, that "article 77 of the Constitution is of
preeminent application to any subordinate norm and as such, the subordinate norm requires
an interpretation in accordance with the purpose expressed in said provision."
- That, “(as) the purpose of this action is clarifying and complete, as this Chamber has
stated in the cited ruling (2077/2002), and at no time can it invade the legal reserve that is
the exclusive jurisdiction of the Legislative Branch , it is necessary that article 77 be
interpreted in accordance with the pre-constitutional laws that develop the effects of
marriage, specifically the CC, since the doubts that arise from its interpretation, when these
effects are extended to stable de facto unions, must be found an adequate procedural
channel for its deduction in court, since this is not predetermined for cohabitants, and as the
pre-constitutional norms are conceived, they mark a problem for the exercise of
fundamental rights and for the maintenance of public order and social peace, establishing in
practice an inequality between those members of a family who have celebrated marriage
and those who have not.”

- That, when establishing the content of article 77 of the Constitution, that stable de facto
unions that meet the requirements established in the law, will produce the same effects of
marriage, the following questions arise: "Do the cohabitants correspond to the totality of
the civil effects of marriage established in the CC and in other laws of the Republic? To
what effects is the Constitutional provision referring, to those rights and burdens between
people or only with respect to their property? What are they and how are they applied?”

- That, “(e)nside to the ruling dated 09/22/2000 (Servio TL) in which the person who
initiates this action is required to express precisely what the interpretation consists of, in
order to specify in which case finds the applicant, and as noted at the beginning of this
writing, the present action deals with the scope of this constitutional device, in relation to
the pre-constitutional legal norms that regulate the effects of civil marriage, which do not
include within their factual assumptions , to stable non-marital de facto unions, which is
why it is necessary to know the scope of article 77 of the CRBV, so that its implementation
in the practical and legal life of all people who find themselves in the situation conceived
therein, is uniform and contradictory rulings are avoided.”
- That “…civil marriage is the only one that produces legal effects, with respect to people
and their property, and in order to claim these civil effects, written proof (public document)
is required that records the celebration of the act. It is then evident, from reading the
provision of article 113 of the CC, that it constitutes a limitation of the precept established
in article 77 of the Constitution."

- That, starting from article 137 of the Civil Code, the effects of marriage are regulated, in
terms of people and their property, since in terms of people, this article places on the
spouses the obligation to live together, maintain fidelity and help each other, it being
optional for the woman to use her husband's surname, which is a right in her favor, which
will subsist after the bond is dissolved due to the death of her spouse and as long as she
does not remarry. He argued that the spouses are obliged to contribute, to the extent of their
resources, to the care and maintenance of the common home and to the other marital
responsibilities, and the spouse who, without justified cause, fails to comply with said
obligations may be legally obligated, hence " Are these effects extendable to non-marital
unions, in terms of the obligation to contribute to the care and maintenance of the common
home and the community responsibilities provided for in the CC?

- That “(...) stable de facto unions, in their legal effects, are equivalent to marriage by
constitutional mandate; But with respect to the effects recognized in the CC, how will it be
applied to these non-marital unions, if the cohabitants cannot dissolve the bond that unites
them through divorce, annulment or judicial separation of property through jurisdictional
means, since they have not celebrated the marriage as such, but in fact they work exactly
the same?

- That “(p)it seems that the answer is found in article 767 of the same legal text, which
establishes: (...). From the analysis of this article, there is no doubt that what is regulated
for this type of unions in the CC is limited to the ordinary community of property, this
community having effects only between them and their heirs, regardless of whose name
they are in. documented assets. Seen in a simple way, what is stipulated there does not
violate the property right of the cohabitants or the inheritance rights of their heirs, if they
decide to end their non-marital relationship; but this community will not exist if one of
them is married. In some way, this article is equivalent in its effects to article 148 of the
CC, which states that between husband and wife, if there is no agreement to the contrary,
the gains or benefits obtained during the marriage, community which begins precisely on
the day of the celebration of the marriage (art. 149 of the CC), but the question arises as to
whether in this separation of the community that exists between them, the value of the
surplus value of the property they had before actually uniting will come into question.

- That, upon dissolution of the de facto bond that unites them due to the death of one of the
spouses, article 767 of the Civil Code limits the common-law partner in the rights granted
to the spouse in the succession of the deceased, since This specific norm does not recognize
the universal community granted to those who do marry, there being a contradiction
between what this legal norm provides and article 77 of the Constitution, which extends the
legal effects that arise from marriage to the established unions of made.

16.- That the need arises to know if cohabitants who decide to dissolve their stable de facto
union, will be able, for the purposes of preserving the common wealth, to have access to the
legal regulations that protect spouses to protect their assets, such as established in articles
191 to 196 of the Civil Code that only apply in the case of divorce. The applicant pointed
out that “(...) for those who are married and have proof of the celebration of that union, in
matters of dissolution and liquidation of the community, article 174 empowers the Judge to
dictate the orders that he deems appropriate. to the security of common property, while the
trial lasts. In the case of cohabitants, one cannot speak of separation of bodies or divorce as
such, so, if a de facto separation of bodies arises that ends the concubinary relationship,
how would matters concerning both the dissolution and liquidation of the community, And
how would the affected spouse preserve that common heritage? Could you ask the Judge
for the caution provided for in article 174 or 191? Could the cohabitant extend to him the
effects of article 195 of the CC, on granting alimony to the cohabitant who is incapable of
working and lacks other means to cover his needs?

17.- That, article 175 of the Civil Code provides that once the separation is agreed upon, the
community is extinguished and its liquidation will be carried out; Consequently, "From
what moment does the community cease to be in a stable de facto union since it is
impossible to mediate a judicial separation that precisely determines the moment in which
it ceases? This is because in the merely declarative ruling that gives certainty of the
concubinary relationship, it only covers that fact, as that is the function of declaratory
rulings, which are not of the nature of conviction or constitutive rulings.”

18.- That a doubt also arises as to whether cohabitants can validly celebrate marriage
agreements, on the occasion of which “I will give an example: A and B decide to contract a
civil marriage and comply with all the requirements established by law, but before After
celebrating the act, they decide to sign a capitulation contract, which complies with all the
legal formalities until its registration. When the day set to celebrate the marriage arrives,
they voluntarily declare that they will not celebrate it before the public official, but from
that day on they decide to live together as a family. Years pass and two situations can
occur: a) they decide to separate or B) one of them dies, will those marriage agreements be
enforceable against them due to the extension of the effects of the marriage? Was there
community among them? In the event of death, would only the legitimate one correspond
to him?”

19.- That article 154 of the Civil Code regulates the free administration and disposal of
one's own assets, but “…in order to dispose of them free of charge, renounce inheritances
and legacies, you will need the consent of the other. Once again, a series of questions arise
in this matter, so will the action that a cohabitant performs in these specific cases without
the consent of the other be valid (sic)?

20.- That, based on article 168 of the Civil Code, the consent of both spouses is required to
sell for free or for consideration or to encumber marital property when it comes to real
estate, rights or movable property subject to the publicity regime. , shares, obligations and
quotas of companies, goodwill, as well as contributions of said assets to companies; The
question arises once again: "Will the common-law spouse be able to file a legal action
against the common property, the necessary consortium litigation because it is the
legitimation in a joint trial in accordance with that rule?", and then indicate that based on
article 171 of the Civil Code, since you are not legally married but are considered as such
by the Constitution, yes, could you request this provisional precaution through jurisdiction?

21.- That, in matters of absence regarding the effects of its declaration, article 427 of the
Civil Code expresses that the spouse of the absent person, in addition to what corresponds
to him by marriage and succession agreements, may, if necessary, obtain alimony, which
will be determined by the condition of the family and the amount of the absentee's assets;
Hence, how are stable de facto unions in relation to this specific case, when one of them is
declared absent?

22.- That, “(a) death being one of the causes of dissolution of marriage, article 807 states
that successions are deferred by law or by will and will be intestate when the succession is
missing in whole or in part. estate. Article 823 establishes that marriage creates inheritance
rights for the spouse of the person whose succession is involved. These rights cease with
the separation of bodies and property, whether by mutual consent or contentious, unless
there is proof, in both cases, of reconciliation. Will this assumption be applicable to stable
de facto unions that were separated for a certain period of time and were later reconciled?
23.- That, in matters of succession, the Civil Code (articles 796, 807, 823-825, 883-887)
recognizes the surviving spouse a series of rights over the assets of the deceased, which by
constitutional mandate should be extended to the concubines, as they find themselves in the
same situation as those who have married. He pointed out that, in addition, article 1481 of
the Civil Code establishes that between a husband and wife there can be no sale of
property, as a result of which the question arose as to how this legal prohibition operates, if
the effects of that de facto union are exact. To marriage? Can it be alleged by one of the
cohabitants or by a third party who was affected by the sale made?

24.- That the Civil Code regulates other effects of marriage that “…have not been cited in
this writing, such as the causes for dissolution of the marriage bond, or the crime of
bigamy, but that could be interpreted by that Chamber in light of what is stipulated in
article 77, because the person signing this document considers that stable de facto unions
only produce effects if the couple is single, because since one of them is married, such an
extension of the effects would become inapplicable, by protecting the CRBV to the
institution of the family based on marriage and in light of the Constitution, these unions are
being protected in the same dimension as the family, because that is its essence.”

25.- That as a consequence of the aforementioned, “…the following doubts arise: In stable
de facto unions that are consolidated in contravention of the CC, and in which nullities (sic)
of the marriage are generated (disciplining impediments and impedientes ) How are the
civil effects that the Code itself recognizes handled?

Finally, he pointed out that the interpretation requested here is of utmost importance, since
if the effects of marriage are applied to stable de facto unions in accordance with the
requirements of the law, its scope must be determined, so that all the Courts of the
Republics uniformly apply these effects that by extension were enshrined in the
constitutional text and are developed in the Civil Code of 1942, reformed in 1982, which is
a pre-constitutional law that only regulated matters relating to concubinal unions to the
filiation of children born. in them and the assets that belonged to the concubines, but
outside of that, the effects of marriage consecrated in said legal text were not applied or
extended, which now by extension are applicable in their entirety.

II

CONSIDERATIONS TO DECIDE

It is up to this Chamber to decide the substance of the present interpretation of article 77 of

the Constitution, for which it is observed:

Article 77 of the Constitution reads “Stable unions between a man and a woman that meet
the requirements established by law will produce the same effects as marriage.”

It is interesting for the Chamber to highlight that said norm uses the word “stable union”
between the man and the woman, and not the term “concubine or concubine” used in article
49.5 eiusdem; and this is so because a stable union is the genus, as can be seen from article
146 of the Organic Tax Code, or from article 13-5 of the Insurance and Reinsurance
Companies Law, or from article 785 of the Savings Banks Law and Savings Funds, with
cohabitation being one of its species.

Concubinage is a legal concept, contemplated in article 767 of the Civil Code, and its
characteristic - which emanates from the Civil Code itself - is that it is a non-marital union
(in the sense that the legal formalities have not been completed. of marriage) between a
single man and a woman, which is marked by the permanence of life together (singleness
becomes a decisive element in the qualification of concubinage, as can be seen from article
767 of the Civil Code and 7 , letter a) of the Social Security Law).

This is a factual situation that requires a judicial declaration and is qualified by the judge,
taking into account the conditions of what should be understood by a life together.

In addition to the rights over the common property that are born during that union (article
767 eiusdem), article 211 of the Civil Code, among others, recognizes other legal effects of
concubinage, such as the existence of the presumption pater ist est for children born during
its validity.

Given the above, for the Chamber it is clear that currently the concubinage that can be
declared such is that which meets the requirements of article 767 of the Civil Code, and it
becomes one of the forms of stable unions contemplated in the constitutional article, since
that meets the requirements established by law (Civil Code), to be recognized as such a
union. For now – for the purposes of the aforementioned article 77 – concubinage is par
excellence the stable union indicated there, and it is declared as such.

The above does not mean that the law cannot classify other types of relationships between
men and women as stable unions for the purposes of article 77 of the Constitution, taking
into account the permanence and notoriety of the relationship, cohabitation, etc. and,
therefore, the Draft Organic Law for the Protection of the Family, Maternity and Paternity,
discussed in the National Assembly, in articles 40 to 49, develops stable de facto unions, as
a figure of its own while concubinage As a figure different from the previous one, it was
developed in articles 50 to 53.
Stable de facto union between a man and a woman

, represents a broad concept that will produce legal effects, regardless of the economic
contribution of each of the partners in the increase or formation of the common heritage or
that of one of them, being what is relevant for the determination of the stable union,
cohabitation or life in common, with a permanent nature, and that the couple is single,
formed by divorced or widowed people among themselves or with single people, without
there being any decisive impediments that prevent marriage.

But since, unlike the marriage that is perfected through the marriage act, included in the
marriage certificate, there is no certain date of when the stable union begins, it must be
alleged by whoever has an interest in having it declared (party or third party). ) and proven
its characteristics, such as permanence or stability over time, the external signs of the
existence of the union (which is similar to the proof of possession of status in terms of fame
and treatment, since the condition of the couple as such, must be recognized by the social
group where it operates), as well as the need for the relationship to be exclusive of another
with the same characteristics, due to the condition of stability. If the stable union is equated
to marriage, and bigamy is prohibited, in the opinion of this Chamber it is impossible, for it
to produce legal effects, the coexistence of several relationships at the same time on the
same level, unless the Law expressly states exceptions. Now, according to article 77 of the
Constitution, the regulation of other stable unions other than concubinage corresponds to
the legal reserve and, therefore, the Chamber is prohibited, even through regulatory
jurisdiction, from classifying these. other unions, and so it is declared.

Having noted the above, the Chamber must point out which of the effects of marriage are
applicable to “stable de facto unions between a man and a woman,” in accordance with the
petitioner's request, and it is necessary to point out that although concubinage is a type of
union stable, because it is the figure regulated in the Law, the Court will refer to it
interchangeably as “stable union” or concubinage, but recognizing that within the concept
of stable union there may be types other than concubinage. In order to cover both types of
unions, and therefore gender, the Chamber will use the term stable union in this ruling to
refer to all possibilities, including concubinage.

Firstly, the Chamber considers that, to claim the possible civil effects of marriage, it is
necessary that the “stable union” has been declared in accordance with the law, which is
why a definitively final ruling is required that recognizes it.

Currently, a judicial declaration of the stable union or concubinage is necessary; dictated in

a process for that purpose; which contains the duration of the same, which facilitates, in the
case of concubinage, the application of article 211 of the Civil Code, since the conception
of a child during its existence, makes it presume that the cohabitant is the father of the child
or daughter, so the declaration of concubinage must indicate the date of its beginning and
its end, if applicable; and recognize, likewise, the duration of the union, when it has been
broken and then reconstituted, computing for the final determination, the time elapsed from
the date of its beginning.

Now, marriage – due to its formal nature – is an institution that is born and tested in a
different way than concubinage or any other stable union, and therefore the latter cannot be
fully equated to marriage and, therefore, it cannot be claimed that Automatically, all the
effects of marriage apply to “stable unions.”

Consequently, a general declaration that assimilates unions (of any type) to marriage is not
possible, and therefore, the Chamber observes, it is necessary to distinguish which effects
of marriage apply to concubinage and possible other stable unions.
These unions (including concubinage) are not necessarily similar to marriage, and although
life in common (with a common home) is an indicator of their existence, as can be seen
from article 70 of the Civil Code, this element can always be ignored. that the permanent
relationship translates into other forms of coexistence, such as constant visits, mutual help,
repeated economic help, joint social life, children, etc.

Following indicators that arise from the laws themselves, the duration of the union, at least
two years minimum, may help the judge to qualify the permanence, since that was the term
contemplated by article 33 of the Law of the Union. Social Security, by regulating the right
of the common-law wife to the survivor's pension.

Due to the above, the Chamber moves on to examine the effects of marriage applicable to
stable unions and concubinage, and it considers that the duties that article 137 of the Civil
Code imposes on spouses and whose violation becomes grounds for divorce ( see in article
185 of the Civil Code the 1st and 2nd ordinals), they do not exist in concubinage or in other
unions.

Stable union does not necessarily mean under the same roof (although this is a symbol of
it), but permanence in a relationship, characterized by acts that, objectively, make people
(third parties) presume that they are dealing with a couple, that They act with the
appearance of a marriage or, at least, of a serious and close relationship, which constitutes
life together.

It is a permanent relationship between a man and a woman, and not one between a man and
several women (even if all of them are on the same level) and vice versa.
In the opinion of the Chamber, just as there is no duty to live together, there cannot be the
duty of fidelity contemplated in article 137 of the Civil Code, so the violation of duties such
as fidelity or life together (article 137 cited) do not produce legal effects, the “union” being
broken by the repudiation of it by any of the components, which is given because one of
them contracts a marriage with another person, or because, for any reason, continuity was
broken of the relationship. Once the relationship is extinguished, the law, at least in
cohabitation, recognizes the condition of ex-concubine as does article 42 of the Law on
Violence against Women and the Family.

Regarding the duty to help each other, contemplated for spouses in article 137 of the Civil
Code, the Chamber considers that this does exist in any type of union, since if legally
unions (or at least concubinage) generate rights - such as alimony - which normally
correspond to the spouses for the duration of the marriage, the components of these de facto
unions must also have these rights, as explained later, and this corresponds to the
aforementioned duty of mutual aid.

Article 173 of the Civil Code also grants a woman's optional right to use her husband's
surname.

In the opinion of this Chamber, the use of surnames other than one's own, such as that of
the husband's for the woman, is a right that arises only from the marriage act, which entails
adding something to her identity, and which is supported by the marriage certificate that
reflects a new marital status.

The civil status of natural persons is formed by births and marriages, and necessarily by the
changes it undergoes (divorce, for example), which are noted outside the civil status items.
For the Court, the fact that a stable union in general produces the same effects as marriage
does not mean – it is repeated – that it becomes a marriage, but rather that it is equated to it;
that is, as far as possible. However, the legal condition of the stable union, in principle,
does not allow the woman to use her husband's surname.

The civil status arises from formal expressions of will contained in the minutes of the civil
status, as well as from the transformations that it receives and that appear in the marginal
notes of the items.

This is a formal issue that not only allows us to know the condition of the person, but is
also the cornerstone of the identification system.

There is, at this time and for this date, no record of the civil status of concubinage, or other
type of union, that grants the status of common-law or union and, therefore, the symbols
that represent the civil status, such as the use of the surname of the husband by the wife; In
the opinion of the Chamber, it cannot be used by those who have not married.

Now, when equated to marriage, the “stable union” genre must have, like it, a property
regime, and in accordance with article 767 of the Civil Code, corresponding to concubinage
but currently applicable by analogy to de facto unions. , this is that of the community in the
assets acquired during the time of existence of the union. It is a community of property that
is governed, due to the equality, which is possible in this matter, by the rules of the
property-matrimonial regime.

Various laws of the Republic grant cohabitants property and social rights in different areas
of life, and this, in the opinion of the Chamber, is an indicator that cohabitants are being
recognized with economic benefits as a result of their union, therefore that, in article 77
eiusdem, by considering them equated to marriage, it is logical to think that their rights
advance until they reach the patrimonial rights of marriage, specifically recognized in other
laws.

The Law Regulating the Pension Subsystem (article 69-6) grants cohabitants a survivor's
pension; The Statute Law on the Retirement and Pension Regime of Officials of the State
and Municipal Public Administration grants the concubine rights to the survivor's pension
(article 16-3); The Operating Rules of the Decree with the Rank and Force of Law on
Long-Term Mortgage Loans (article 130), as well as the Operating Rules of the Decree
with the Rank and Force of Law Regulating the Housing Subsystem (article 34) provide for
cohabitation as eligible for loans to obtain housing; The Social Security Law (article 7-a)
grants the concubine the right to comprehensive medical care; The Organic Labor Law
(article 568) gives the partner the right to claim the compensation that will correspond to
his deceased partner, and the same right is granted by the Public Service Statute (article
31).

These are economic benefits that arise from the assets of the cohabitants: savings,
insurance, taxpayer investments (article 104 of the Income Tax Law recognizes this), etc.,
and this, in the opinion of the Chamber, leads to If concubinage is to be equated with
marriage, by mandate of article 77 of the Constitution, the extensible marital effects cannot
be limited to those specifically indicated in the cited laws or in other regulations, but rather
to everything that may make up the common property, since Much of that heritage is
compromised by the aforementioned laws.

Such community of property, unlike divorce which requires a judicial declaration, ends
when the union is broken, which - except due to death - is a question of fact that must be
alleged and proven by the person seeking the dissolution and liquidation of the community.
community. In the opinion of the Chamber, and as a natural result of such situation,
whoever demands the dissolution and liquidation of the community, may ask the judge to
issue the rulings of article 174 of the Civil Code, in the case contemplated therein.

Now, since there is no action for separation of bodies from concubinage and even less one
for divorce, since the breakdown of the union is a de facto situation that can occur at any
time unilaterally, articles 191 and 192 of the Civil Code They are inapplicable, and so it is
declared; However, in the processes aimed at recognizing concubinage or stable union, the
necessary preventive measures may be dictated for the preservation of children and
common property.

When article 77 of the Constitution appears, profound changes arise in the concubinary
regime of article 767 of the Civil Code, since there is a stable or permanent union, there is
no need to legally presume any community, since it exists by law - if there are assets - with
respect to what was acquired, just as in marriage, during the time that the union lasted and,
as a community, it is not that it has legal effects between the two of them and between their
respective heirs, or between one of them and the heirs of the other, as contemplated in
article 767 of the Civil Code, but, like the assets referred to in article 168 of the Civil Code,
third parties who have debts against the community may collect from the common assets,
as This norm guides it.

To this end, if the stable union or concubinage has not been declared judicially, third parties
may have an interest that is recognized by judgment, in order to collect their debts from the
common property. To do this, they will have to allege and prove the community, suing both
concubines or their heirs.
Since there are no publicity mechanisms that communicate the existence of concubinage,
nor that record the sentences that declare it, for third parties with an interest in the common
property, it is - most of the time - impossible to know in advance the existence of the
concubinage and what those are. common goods; which is why the Chamber considers that
requiring the application of article 168 of the Civil Code would be contrary to the principle
that no one can be asked the impossible, since not knowing the existence of concubinage,
nor are the cohabitants obliged to declare such a condition, In lawsuits involving common
property, it will be sufficient to sue the person who appears to be the owner of the same,
and the latter may also legitimately bring actions against third parties related to the
common property, unless the ownership of them is documented in favor of both. .

Now, once the concubinage has been judicially declared, any of the cohabitants, in defense
of their interests, may initiate the action provided for in article 171 of the Civil Code for the
benefit of the common property and obtain the preservation of the same through the
measures decreed by the judge.

It is important for this interpretation to clarify whether it is possible that between

concubines or united persons, there is a property regime different from that of the
community of property, such as that provided for in the Civil Code on matters of marriage
contracts.

In the opinion of this Chamber, this is impossible, because the essence of concubinage or
stable union is not given – as in marriage – by a document that creates the bond, such as the
marriage certificate, but by the permanent union. (stable) between the man and the woman,
which requires a passage of time (which the judge will weigh), which is what qualifies the
stability of the union; and this being so, a priori there cannot be a registered declaration of
the constituent parties of the union, in the sense of how they will manage the assets
obtained during it.
Likewise, the Chamber has to examine the possibility for one of the members of a union or
concubinage, of the existence of putative concubinage, which arises when one of them, in
good faith, is unaware of the married status of the other. In the opinion of this Chamber, in
these cases the rules on putative marriage, applicable to property, will apply to the
concubine in good faith.

As a result of the equation recognized in article 77 of the Constitution, regarding the effects
and scope of the stable union (concubinage) with marriage, the Chamber interprets that
among the subjects that comprise it, who occupy ranks similar to those of the spouses ,
there are inheritance rights in accordance with the provisions of article 823 of the Civil
Code, provided that the death of one of them occurs during the existence of the union. Once
it has ceased, the situation is the same as that of separated or divorced spouses.

Since each member of the union is recognized with succession rights in relation to the
other, the survivor or survivor, when occupying the position of a spouse, concurs with the
other heirs according to the order of succession indicated in the Civil Code (articles 824
and 825) in matter of intestate succession, in accordance with article 807 of the Civil Code,
and his legitimate right must be respected (article 883 of the Civil Code) if there is a will.
Likewise, the causes of unworthiness that exist between cohabitants will be applied in
accordance with article 810 of the Civil Code.

Now, equating cohabitants or those united with spouses in the compatibility between these
figures and marriage, the Court considers that as long as the union exists, each one may
demand maintenance from the other participant, unless he or she lacks resources or assets
of his or her own. to supply them, in which case they may be required from the persons
indicated in article 285 of the Civil Code.
Likewise, in the event of a declaration of absence of one of the members of the union, the
other may obtain alimony in accordance with article 427 of the Civil Code.

In cases in which succession or maintenance actions are initiated, or against third parties,
without a prior judicial declaration of the existence of concubinage or stable union, the
lawsuit will require that these be declared previously, so it must be alleged and prove such
condition.

Due to the effects and scope indicated, the sentence declaring the union will have the
effects of the sentences referred to in ordinal 2 of article 507 of the Civil Code, which will
be applied in its entirety, except in relation to the need to register the sentence, which is not
provided for – and therefore lacks a procedure – in the Law.

This absence of registration and, therefore, of publicity, which can keep the cohabitation
hidden from third parties, raises the question of whether the sale between cohabitants is
void, as established in article 1481 with respect to spouses.

In the opinion of this Chamber, given the effects recognized by the “stable union”, it would
be a source of fraud for the creditors of any of the cohabitants, to accept that one would sell
to the other the common property documented in his name or owned by him. and,
consequently, whoever proves that the sale has occurred between them, can invoke the
existence of the union and treat them as common property or, as the case may be, request
the annulment of the deal.
The Court must note that the only concubinage that produces effects comparable to
marriage is the one outlined in this ruling; and such a limitation is made because some laws
call a concubine a woman who lives with a man even though he is prevented from marrying
her, when in reality such concubinage is contrary to article 767 of the Civil Code and what
this ruling conceptualizes.

The misuse of the word concubine, in the sense immediately indicated, appears in articles
397 and 399 of the Penal Code, and is declared as such.

The Chamber also notes that various laws in force, such as the Organic Tax Code (article
146-4), the Law on Insurance and Reinsurance Companies (articles 13-5 and 21), the Law
on Savings Banks and Savings Funds ( articles 78-5 and 136), point out impediments to
accessing positions for those who maintain stable de facto unions. Likewise, articles 56 of
the Law of the Scientific, Criminal and Criminalistic Investigation Corps, and 71 of the
Insurance Contract Law, refer to these.

Now, since the law has not yet determined who is considered to live in a stable de facto
union, such mention, in all cases, in the opinion of this Chamber, must currently be
understood to apply equally to cohabitants, since that in specific relation to them, there are
prohibitions in article 20 of the Mining Law.

Lastly, and as a result of what has been interpreted, is that when in a specific legal
relationship, one of the parties acts in their capacity as a cohabitant, for the purposes of that
relationship the existence of the concubinage is recognized by the parties and,
consequently, between the parties to the relationship or business, one of them will be
deemed to be linked to concubinage.
In the terms set forth, the requested interpretation is resolved, and given its binding nature,
in accordance with the provisions of Article 335 of the Constitution, the publication of this
ruling in the Official Gazette of the Republic is ordered, without prejudice to Since the
Constitution of the Bolivarian Republic of Venezuela came into force, the rights of
cohabitants have been constitutionally recognized. This is how it is decided.

Likewise, the interpretation made in this ruling is without prejudice to the rights of
indigenous peoples and communities, in terms of their social organization, uses and
customs, recognized in article 119 of the Constitution.

DECISION

For the reasons stated above, this Constitutional Chamber of the Supreme Court of Justice,
administering justice in the name of the Republic and by authority of the Law, declares the
request for interpretation of article 77 of the Constitution resolved in the terms expressed in
the motivational part hereof. failed.

Given its binding nature, the publication of this ruling in the Official Gazette of the
Republic is ordered, and it is from said publication that this ruling will begin to take effect.

Publish and register. Comply with what is ordered. File the file.

Given, signed and sealed in the Hearing Room of the Constitutional Chamber of the
Supreme Court of Justice, in Caracas, on the 15th day of July, two thousand five (2005).
Years: 195th of Independence and 146th of the Federation.
The Constitutional Chamber of the Supreme Court of Justice (hereinafter TSJ) interpreted
article 77 of the National Constitution, in decision No. 1682, dated July 15, 2005 (case:
“Carmela Mampieri Giuliani), specifically in the part that establishes :

" ... "Stable de facto unions between a man and a woman that meet the requirements
established by law will produce the same effects as marriage."
Of the plurality of issues resolved by the Constitutional Chamber, our comments only
touch on the points indicated in the summary.

1. THE EQUATION BETWEEN MARRIAGE AND DE FACT UNION OR

CONCUBINATION

In the interpretative decision in commento, the Constitutional Chamber of the TSJ partially
equates de facto union or concubinage with marriage, in order to the effects it produces, as
follows:

“…Now, marriage – due to its formal nature – is an institution that is born and tested in a
different way than concubinage or any other stable union, and therefore the latter cannot be
fully equated to marriage and, therefore, cannot be It is intended that, automatically, all the
effects of marriage apply to “stable unions…”.

These unions (including concubinage) are not necessarily similar to marriage…”

(…)

“Now, when equated to marriage, the “stable union” genre must have, like this, a property
regime, and in accordance with article 767 of the Civil Code, corresponding to concubinage
but currently applicable by analogy to unions of In fact, this is that of the community in the
assets acquired during the time of existence of the union. It is a community of property that
is governed, due to the equality, which is possible in this matter, by the rules of the
patrimonial-matrimonial regime…” (Our italics).

From what was resolved by the Chamber, three (3) deductions can be drawn:

(i) Since marriage is born and proven differently from concubinage, or any other stable
union (even though it does not indicate what other stable unions it refers to), the difference
- in its birth as in the probatory order - makes both one like the other cannot be fully
equated with marriage; and, consequently, the effects of marriage (personal and property)
do not occur entirely in the de facto union. In this case, the more uxorio or de facto stable
union (concubinage) and any other stable union are not necessarily similar to marriage, that
is, neither equal nor equivalent.
(ii) The stable de facto union (concubinage) and any other stable union are not necessarily
similar to marriage, that is, nor similar, which is why they are not comparable.

(iii) However, the Court then equates the genus “stable union” with marriage, and thus it
must have, like it, a property regime (community of property due to the equality).

All of this goes to demonstrate, without any hesitation, that a de facto union cannot be
equated with marriage (assimilate, give equally or equivalently in a total way and in terms
of its existential nature). On the one hand, the spouses themselves do not accept the
equality when they do not want to live within the de facto union, nor do the de facto
cohabitants since they do not want to get married. For this reason, a status cannot be
imposed on them against their will or consent. They cannot be equated since they are two
different institutions from the anthropological, cultural, ideological, philosophical,
doctrinal, political and sociological point of view.

Marriage is a union or bond of law. The de facto union is that: in fact, and when doctrine,
legislation, jurisprudence and the Constitution insist on the expression “de facto union”, the
difference between both realities becomes precise. Thus, the constitutional norm gives
prevalence and normative hierarchy to the protection of marriage; while the de facto union
is subject or conditioned, so that it can produce the same effects as marriage, to compliance
with the requirements established by law. This means that while marriage, in this
constitutional norm, appears with its own identity, specificity, functional and structural
autonomy, without having to resort to other demands, requirements or models (to acquire
its fullness and integrity), for it to produce its effects. (personal and property); The more
uxorio or de facto union between a man and a woman is placed within a normative
structure, especially of principle, conditioned to resemble marriage (something like a
second-class marriage); or as a copy of the original from which it takes its appearance but
which as a copy is not equal in substance or content, but which is reproduced from the
original so that it resembles the same and produces the effects of marriage, or at least which
has the possibility of become marriage; in which case - when it is not transformed or
converted - that union remains of a lower rank that aspires to resemble it, without acquiring
its same and proper content, its same system, which generates the full effects in the
intercouple relationship, between man and woman. cohabiting woman. However, this does
not mean, in any way, that the factual or coexistence union between a man and a woman is
unprotected, even more so when this is a social reality with different characteristics than
marriage, except that between both unions there is a unique sign or just as it does not
differentiate them, as is the union of a couple made up of a man and a woman.

However, the Constitution seems to equate the de facto union with marriage, in both cases
between a man and a woman, but only and relatively so far as it concerns reciprocal rights
and duties, but in relation to children the difference does not exist. When a man and a
woman unite in fact, they undoubtedly do so to avoid submitting to the marriage regime,
and even though it is a family with protection, that de facto union is not equivalent to
marriage; so that when conflicts occur in the exercise of duties-rights, the specific case
must be assumed or adopted to reach the solution conclusion, but it is not possible to
deduce all or the same effects of marriage. That is why we talk about the relativity of the
effects referred to in article 77 of the Constitution (such as, for example, a woman cannot
use the surname of her partner), which recognizes and guarantees the right of a man and a
woman to marry, but does not authorizes marriage between two people of the same sex.

2. UNION MORE UXORIO AND ITS JUDICIAL DECLARATION. THE

DECLARATIVE CONCUBINARY ACTION AND ACCUMULATION OF CLAIMS.

2.1. The more uxorio union and its judicial declaration

In the interpretative decision in commento the Constitutional Chamber resolves the

following:

Referring to concubinage,

“(…) This is a factual situation that requires judicial declaration and is qualified by the
judge, taking into account the conditions of what should be understood by life together
(…)”

And then add:

“(…) First of all, the Chamber considers that, to claim the possible civil effects of marriage,
it is necessary that the “stable union” has been declared in accordance with the law, which
is why a definitively final ruling is required that recognizes it.

Currently, a judicial declaration of the stable union or concubinage is necessary; dictated in

a process for that purpose (…)”

From what was resolved by the Constitutional Chamber, it follows:

(i) That for the existence of the de facto union, a judicial declaration is required;

(ii) To claim the possible civil effects of marriage, it is necessary that the “stable union” has
been declared in accordance with the law, which is why a definitively final judgment is
required that recognizes it, issued in a process for that purpose, and ;

(iii) The Chamber does not resolve that it is necessary to first judicially establish the
existence of the de facto situation, that is, the concubinal union; and once that decision is
definitively signed, the parties could not request the partition and liquidation of that
community, nor would the judge be incurring excess jurisdiction.

Until now, in our country, the concubinal union corresponds to a factual or de facto issue
(presumed material certainty), which requires to be qualified by the court, for the benefit of
the cohabitant who has an interest, through the corresponding judicial declaration that
establishes the existence of the same (legal certainty). Legal certainty is established, then,
by fixing the facts by the judge through updating them in the time they occurred or took
place during the coexistence so that it is such (more uxorio) and thus be able to classify
them. legally and originate its consequences with the elements of conviction, and produce
the declarative sentence, not constitutive of rights; declarative because, as the
Constitutional Chamber states in the decision in commento, given its binding nature, in
accordance with the provisions of article 335 of the Constitution, it orders the publication
of the ruling in the Official Gazette of the Republic, without prejudice to the fact that since
Since the Constitution of the Bolivarian Republic of Venezuela came into force, the rights
of cohabitants have been constitutionally recognized.
So, is the court ruling the only means of proof for the existence of the de facto cohabitation
union? Can the cohabitants not voluntarily demonstrate it through an authentic instrument?

In the majority of doctrine, the criterion seems to prevail according to which to verify the
existence of the more uxorio or concubinary union between a man and a woman, a judicial
ruling is absolutely necessary, which is the act that gives it certainty and legal effectiveness.
The judicial decision is not constitutive but declarative in nature, since the declaration gives
legal certainty to the patrimonial company and this is due to the fact that the legal certainty
in question is not an essential requirement for existence, but rather for legal certainty.
Before the judicial declaration of existence, the cohabitation union has existence by itself,
from the moment in which the conditions required for it are met, even when it has not been
declared judicially and, therefore, also lacks the aforementioned legal certainty. that
prevents the legal effects granted to it by the Constitution and the law. For this reason, the
declaration produces effects from when the union was created (declarative effect) and into
the future and not from when the sentence becomes final (constitutive effect).

And if the cohabitants have granted a public or authentic instrument that demonstrates the
existence of that union, in that case that judicial declaration will not be required? The
problem is not reduced only to its instrumental demonstration. This instrument without a
doubt demonstrates it as long as that union is classified as stable, that among other
requirements there has been cohabitation or life in common, with a character of
permanence and notoriety, without there being any decisive impediments that prevent the
exercise of the capacity to live together. If the problem is in the verification of its
beginning, if nothing is expressed about it in that instrument, the beginning is important in
several aspects, and one of them corresponds to the patrimonial to know if the assets
acquired by only one of the cohabitants belongs or not to the concubinary community,
depending on whether one of them is not married, within the theme constructed by article
767 of the Civil Code and in accordance with the protection provided for in article 77 of the
Venezuelan Constitution. And, furthermore, the stability of that concubinary union is
important in order to its permanence itself, because that declaration of being issued solely
to express it, for reasons even outside of reality, without containing expressed the time it
has lasted, would also have to verify it for the various effects established in the law. That
public or authentic instrument may be reduced to a simple bilateral declaration, if the
coexistence indicated by its grantors lacks the required stability referred to in article 77
eiusdem, despite being able to constitute an important presumption to contribute to the
demonstration of the existence of the coexistence union. This instrument can show a formal
truth, but it can be useless in the face of the requirement of the material truth that gives
existential content to the factual reality in accordance with the provisions of article 77
ibidem, since that formal truth will be inconsequential when one of the cohabitants intends
demonstrate the stable union with that instrument granted and the other demonstrates that
the union has not been stable. Such is the case, for example, of the lack of cohabitation, or
the absence of singularity or fidelity, non-permanence, absence of notoriety, or the
existence of decisive impediments that hinder the exercise of the ability to live together. In
any of such cases, that union that is claimed to be cohabiting is not stable and does not meet
the requirements demanded by the Law (especially the Civil Code) so that it produces
relatively the same effects as marriage, as stipulated in article 77 in commento.

The declaration that cohabitants can issue may have purposes other than simply
demonstrating cohabitation. Thus, for example, knowing how the assets acquired during the
union will be, whether they belong to each of them or not; or to obtain a common or
particular benefit from a certain institution, legal or natural person, on the occasion of work
or other circumstances. On the other hand, the judicial declaration comes from the claim of
one of the cohabitants who directs it to the State, through the judge so that the object of the
action, which is the sentence through procedural activity, originates the decision that
declares the existence of the factual union that is required or requested in the petition of the
claim.

Now, for the Constitutional Chamber:

“(…) since, unlike the marriage that is perfected through the marriage act, recorded in the
marriage certificate, there is no certain date of when the stable union begins, it must be
alleged by whoever has an interest in having it declared ( party or third party) and proven
its characteristics, such as permanence or stability over time, the external signs of the
existence of the union (which is similar to the proof of possession of status in terms of fame
and treatment, since the condition of the couple as such must be recognized by the social
group where it operates), as well as the need for the relationship to be exclusive of another
with the same characteristics, due to the condition of stability...".

Hence, the Chamber considers that, to claim the possible civil effects of marriage, it is
necessary that the “stable union” has been declared in accordance with the law, which is
why a definitively firm ruling is required that recognizes it.

Finally, for the Constitutional Chamber, in the interpretative decision in commento, “Due
to the effects and scope indicated, the sentence declaring the union will have the effects of
the sentences referred to in ordinal 2 of article 507 of the Code. Civil, which will be applied
in its entirety, except in relation to the need to register the sentence, which is not provided
for – therefore lacks procedure – in the Law” (Italics ours). Given the consequences that
this interpretative decision produces, we allow ourselves to cite article 507 of the Civil
Code in its 2nd ordinal, which provides the following:

“The definitively final sentences issued in the trials regarding the civil status and capacity
of the persons and the adoption decrees, once inserted in the respective registries, will
produce the following effects: … 2º The declarative sentences, in which filiation is
recognized or denied or on claim or denial of status and any other that is not mentioned in
the previous number, will immediately produce the same absolute effects as those; But
within the year following its publication, the interested parties who did not intervene in the
trial may sue all those who were part of it, without exception, to declare the falsity of the
status or filiation recognized in the contested ruling. The heirs or assigns of the parties in
the first trial or those who did not intervene in it despite having had timely knowledge of
the initiation of the procedure will not have this remedy.

The sentence handed down in the second trial will be mandatory for everyone, both for the
parties and for third parties. No appeal will be admitted against it.

For the purposes of calculating the year set for the expiration of the appeal granted in this
article, an extract of any ruling that declares or denies status or filiation will be published in
a newspaper in the locality that is the seat of the Court that issued it. If there is no
newspaper in the location where the Court is located, publication will be made by an
appropriate means. Likewise, whenever an action is promoted on which a ruling included in
this article is to be imposed, the Court will publish an edict in which, in summary form, it is
made known that a certain person has proposed an action related to filiation or the civil
status; and calling on everyone who has a direct and manifest interest in the matter to take
part in the trial.”

It means, then, that the definitively firm merodeclaratory ruling on the existence of the
more uxorio union does not require its insertion in the respective registry for it to
immediately produce full effects; but within the year following its publication, the
interested parties who did not intervene in the trial may sue all those who were part of it,
without exception, to declare the falsity of the state recognized in the contested ruling, but
they will not have this appeal by the heirs or successors of the more uxorio cohabitants in
the first trial, nor those who did not intervene in it despite having had timely knowledge of
the institution of the procedure. This indicates that third parties, just as they can request that
the cohabitation union be declared, in the main action or as intervening third parties, they
can also request that the falsity of the more uxorio cohabitation state be declared, which
was declared by a definitively final sentence, if they had not been aware appropriateness of
the establishment of that procedure. Therefore, when the mere declaratory action of the
existence of the more uxorio union is promoted, the Court must publish an edict in which,
in summary form, it is made known that a certain person has proposed an action related to
the concubinary state; and calling on everyone who has a direct and manifest interest in the
matter to become part of the trial, in accordance with article 507 in fine of the Civil Code.

2.2. Declarative concubinary action and accumulation of claims

As we already observed, the Constitutional Chamber does not resolve that it is necessary to
first judicially establish the existence of the de facto situation, that is, the concubinary
union; and that once that decision is definitively signed, the parties could not request the
partition of that community, nor would the judge be incurring excess jurisdiction; nor did it
prohibit the accumulation of mere declaratory concubinary claims and that of partition and
liquidation of the patrimonial community. Even when legislation is made on a stable de
facto union, that union of such a nature that has not complied with the requirements
referred to in that law, will not cease to be a de facto or concubinary union within the
context of article 767 of the Code. Civil, in the event that this rule is not expressly or tacitly
repealed. This possible partial tacit repeal could have occurred due to the collision of article
41 of the abandoned Family, Maternity and Paternity Protection Bill, with article 767 of the
Civil Code, when that contemplated: “When it is demonstrated between married people the
existence of prolonged de facto separations in accordance with the provisions of article
185-A of the Civil Code and the expiration period for the exercise of criminal action for
adultery has expired, stable de facto unions between couples of a man and a woman, will
produce the same filial, patrimonial and succession effects as in marriage, in accordance
with the regulations of this Law." That is to say, the presumption of concubinal community,
referred to in article 767 of the Civil Code, would not apply when one of the cohabitants is
married, but it would apply when the existence of prolonged de facto separations is
demonstrated between married people in accordance with the provisions of the Civil Code.
provided for in article 185-A of the Civil Code, and the expiration period for the exercise of
criminal action for adultery has expired. In such a case, there would be a collision between
both norms that could result in the tacit partial repeal of article 767 of the Civil Code in that
regard, but it would remain in force for the purposes of the presumption of the concubinary
community in those cases when the woman and the man In your case, demonstrate that you
have lived permanently in such a state, without them having legalized the union in
accordance with that Law, because they were not interested or did not want to, in which
case it could happen that later any of them could require demonstration of the existence of
that concubinary community through the judicial decision that declares it so. We will, then,
be in the presence of the concubinary mere-declarative action, and it is interesting, for this
purpose, to observe whether or not it is appropriate to accumulate in the same lawsuit the
claims of declaration of certainty of the concubinary union and that of partition of the
patrimonial community of the same.

Articles 77 and 78 of the Code of Civil Procedure provide the following:

Article 77. The plaintiff may accumulate in the libel any claims he has against the
defendant, even if they arise from different titles.
Article 78. Claims that are mutually exclusive or contrary to each other cannot be
accumulated in the same libel; nor those that due to the matter do not correspond to the
knowledge of the same Court; nor those whose procedures are incompatible with each
other. However, two or more incompatible claims may be accumulated in the same libel so
that one may be resolved as a subsidiary of the other, provided that their respective
procedures are not incompatible with each other.

As provided in article 78 of the Code of Civil Procedure, it is a connection of subjective

claims, since when one of the cohabitants actions the other so that the court declares the
existence of the cohabitation union and requests that the partition be proceeded and
liquidation of community assets, is it because there is identity of parties between these two
claims that justifies their initial accumulation in the same original claim, as they are not
incompatible or exclusive between themselves and in the manner as we observe below?

GUASP believes that two or more claims are incompatible when, due to the judicial
consequences they are bound to produce, they cannot be legally combined. The author
refers to the competence of the judge and the nature of the procedure. Regarding the
incompatibility of claims "when the judge who must hear the main action is incompetent
due to the subject matter or the amount in dispute to hear the accumulated action"; and
“when, in accordance with law, actions in lawsuits of a different nature must be heard and
decided”; and points out that if the judge is not competent to hear each and every one of the
accumulated claims, the initial union of the claims may not be admitted. This rule, he says,
applied in its full scope, would make the expeditious initial accumulation of shares
extraordinarily difficult. It is precisely to avoid rigidity that the figure of connection is
created as a cause modifying jurisdiction, that is, a case that authorizes the Judge competent
for a certain claim to hear another or others related to it.

The game of connection must therefore be taken into account, inexcusably, to understand
the meaning of the current prohibition. The connection, as VÉSCOVI argues, means the
connection, relationship, link or nexus between two or more procedures, which generally
determines that they must be decided by the same judge. The connection may appear before
the process begins, and then the phenomenon of accumulation of claims occurs. It can also
occur when answering the claim, in the case of a counterclaim, a guarantee summons, a
third party appeal, etc. The same thing happens in the third party phenomenon. Finally, the
connection in the course of two processes can lead to the phenomenon of procedural
accumulation (accumulation of proceedings or processes).

The initial plurality of claims that can be accumulated in the same plaintiff's claim can
occur when they are connected to each other. Therefore, is it appropriate to accumulate in
the same claim of the plaintiff the mere declaratory claims of existence of the more uxorio
or concubinary union and the partition and liquidation of the assets acquired during that
union?

The Civil Cassation Chamber of the TSJ, in ruling RC-00176 of March 13, 2006 (case:
“Ingrid Reyes Centeno against Roberto Jesús Blanco Colorado”), resolved the following:

“(…) The Chamber observes that in the case at hand, two claims were accumulated in the
petition: the mere declaratory action for recognition of concubinary union and the partition
of community property, which could not be accumulated in one same demand, since it is
necessary to first judicially establish the existence or not of the de facto situation, that is,
the concubinary union; and, once that decision is definitively signed, the parties could
request the partition of that community, otherwise the judge would be incurring an excess
of jurisdiction…” (bold in the Chamber).

And the same Civil Cassation Chamber in decision RC-00384, of June 6, 2006 (case:
“Vestalia de La Cruz Ron against Isabel Cheksbir de Fernández et al”), decided:

“(…) By application of the previous jurisprudential criteria to the case in question, which
are reiterated in this ruling, if the plaintiff intends to divide and liquidate the assets in the
concubinal community that she claims existed between her and her deceased partner, she
must have attach to the introductory document of the claim a certified copy of the judicial
declaration of its existence (...)”.

“(…) that through this action the plaintiff seeks the liquidation and partition of a
concubinary community that has not yet been classified as such by any judge;
Consequently, the present claim should not have been admitted because the assets of a
stable de facto relationship, such as the alleged concubinage, which has not yet been
judicially recognized, cannot be liquidated and divided (…).”

However, this definitively firm ruling that recognizes the existence of the “stable union”
(referred to in Article 77 of the current Venezuelan Constitution) answers the question:
What does the common-law husband or wife intend? That is, what is the purpose of that
sentence. The purpose has to do with the type or class of action, because, in the field of
more uxorio relationships, the judicial decision that is produced – establishing its existence
so that it produces the effects indicated in article 77 eiusdem – comes from a action of
judgment or knowledge. For HERNANDO DEVIS ECHANDÍA, the generic judgment or
knowledge or declarative action is the one that is exercised to initiate a process of this kind,
that is, for the judge to judge about the existence of the right or claim that the plaintiff
alleges and of the obligations claimed by the defendant, or to resolve the liability of the
accused. Therefore, this class includes pure declarative actions, condemnation and
constitutive declaration, which form the general group of declarative actions. For his part,
JUÁN JOSÉ BOCARANDA, maintains that a declarative concubinary action is understood
to be that which is filed by one cohabitant against the other, so that, once the configuration
of the extramarital relationship has been declared by the Court, and the existence of the
community of property has been established, order the defendant to deliver to the plaintiff
the part of the assets that corresponds to him.

When the common-law partner asks the judge or court to declare the existence of the more
uxorio union, he or she is seeking legal certainty of the same, so that it produces the
corresponding legal effects. However, the aspiration of the person seeking is not to remain
in the mere declaration of certainty (merodeclarative sentence), but to go beyond it and
based on it and before the presumption of community of the assets acquired during the
union in accordance with with the provisions of article 767 of the Civil Code, the division
of the common property is carried out (declaratory - condemnatory sentence, which results
from a mixed process in that it includes the two claims under the rigor of a single action);
Well, as HERNANDO DEVIS ECHANDÍA rightly states, it can happen and is very
common that the process required by the actor is mixed, that is, declaratory and sentencing;
of constitutive declaration and condemnation; declarative and constitutive declaration and
condemnation; precautionary and constitutive or declarative declaration. It seems then that
several actions will be taken, one for each type of request; but this is a mistake, since the
action that starts a process is always one. What can exist multiple is the pretension. To
clearly see the truth of this statement, the author observes, it is enough to remember that
every action leads to the sentence through the process; therefore, one is legally sufficient. It
can be said in these cases that the action is of a mixed nature, since it pursues a complex
and mixed activity of the judge. But it can never be said to be the exercise of several
actions in a lawsuit, in a procedural sense; or unless the term is used in a material sense, to
refer to the different material rights object of the claim or to the various claims that are to
be deduced from them.

So, then, the sole judicial declaration - on the existence of the de facto union - would be of
no use if its purpose were not, then and immediately, to obtain and in the same process that
patrimonial division as a consequence of having broken or extinguished such Union; since
the mere declaration is not capable of execution. For this reason, the aforementioned
decision of the Civil Cassation Chamber of the TSJ (RC-00176, of March 13, 2006) seems
not to understand that it is an error to speak of accumulation of actions of the same actor in
the lawsuit, since what exists It is an accumulation of claims and not actions, and only one
action is exercised. Regarding this, in the current Code of Civil Procedure the customary
error that contained this misunderstanding was corrected and it was established that the
plaintiff may accumulate in the libel all claims against the defendant, even if they derive
from different titles. When the Civil Cassation Chamber of the TSJ states “that in the case
at hand, two claims were accumulated in the lawsuit: the mere declaratory action for
recognition of concubinary union and the partition of community property,” the “claim”
could be confused. ” with “action.”

It has been stated that it is an error to speak of "accumulation of shares" of the same
plaintiff in the lawsuit. What exists is "accumulation of claims and not actions." Only one
action is taken. But the pretension is not the action. The action is the legal power to assert
the claim. That legal power exists in the individual, according to COUTURE, even when
the claim is unfounded. The action, although it should not be confused with the (material)
right asserted in court, is, however, a (procedural) right, as CARNELUTTI maintains,
serving to distinguish it from the claim, with which it has often been confused. and
continues to confuse her. It is enough for their exact distinction to remember that, while the
action is a relationship, the claim is a fact, and more specifically, a legal act, both concepts
belong, therefore, to different and even opposite areas of science, which are statics. and the
dynamics of law.

Action and pretension are different concepts and their elements are different in terms of the
subjects, object and its cause. (i) In effect, the “subjects” of the right of action are: the
plaintiff or plaintiff (active subject) and the judge representing the State (passive subject).
The subjects of the claim are: the actor or plaintiff (active subject) and the defendant
(passive subject). The "object" of the action is the sentence, it is not the obtaining or
achievement of the claims contained in the lawsuit. The "object of the claim" - in such a
case - is the search for that favorable ruling that grants what was requested or intended with
the proposed action. (ii) The "causa petendi" and "the cause of action." The petendi cause is
the reason for asking. The reason for the claim is the foundation given to it, as
CARNELUTTI states.

Then, then, when is there true accumulation of actions in the same lawsuit, in accordance
with what is expressed in article 78 of the Code of Civil Procedure? There is true
accumulation of actions, in the same lawsuit, in two cases, namely:

(i) When the defendant, in the act of answering the claim, sues his plaintiff, that is, when he
counterclaims. With CARNELUTTI we will say that in this case there is "accumulation of
actions", because there are two separate demands, and the action is being exercised
independently and imposing on the judge the obligation to provide for that one.

(ii) When separate judicial processes are accumulated. Then, then, there is a need to refer to
the "accumulation of claims", since when the declaration of the existence of the more
uxorio or concubinary union, the partition and liquidation of the same, is requested, there
are two claims in the same claim of the actor against the defendant. But there are not two
actions there but only one action. What will the action be? Action, as CHIOVENDA says,
is the legal power to give life (porre in essere) to the condition for the performance of the
will of the law; or as ALSINA maintains, the action is a subjective public right through
which the intervention of the jurisdictional body is required for the protection of a legal
claim. This is evident. What is the claim? The claim is the action by which the petitioner
(plaintiff) requests the declaration of the existence of the more uxorio or concubinary union
and the subsequent partition and liquidation of the concubinary community. As can be seen,
there are a plurality of claims. Two claims accumulated in the same plaintiff's claim.

In the doctrine, several criteria have been proposed for the classification of the "plurality of
claims." We will follow what GUASP presents with the idea of allowing us to locate the
meaning that interests us of "pretension", not its concept:

(a) Simple plurality, that is, one in which the various claims brought together are all
claimed concurrently, and to satisfy the holder of the claim the court should act on all of
them against the taxpayer.

(b) Alternative plurality, is one in which the owner, although claiming two or more
different actions, does not ask that one and the other be carried out, but rather that the
verification of any of them is enough to satisfy him.

(c) Subsidiary plurality, is that in which the plaintiff asks the jurisdictional body, first, for a
single action, but secondly, subordinately, in the event that the first request is denied, to
formulate another claim. From the previous classification we are interested - in this topic -
in the type corresponding to the "simple plurality of claims", as these are brought together
in the same claim, so that the jurisdiction resolves all of them against the defendant and for
the benefit of the plaintiff ( if appropriate), as constitutes the case relating to the declaration
of existence of the more uxorio or concubinary union and the subsequent partition and
liquidation of the de facto community. Here we discuss whether or not it is appropriate to
raise, in the same claim of the actor, the "accumulation of these two claims" because it has
been stated that this accumulation is exclusive, since such petitions are contrary to each
other and have incompatible legal procedures. .
Any incompatibility implies contrariness or contradiction. Therefore, what is incompatible
raises exclusion. Then we will try to comment on the meaning of the word
"incompatibility." To this end we can speak of two types of "incompatibilities", or more
specifically "incompatibility of claims".

2.2.1. Material incompatibility

This incompatibility refers to the fact that two or more claims are materially exclusive or
incompatible, when the legal effects or simple economic effects can produce, they cannot
subsist at the same time, as they oppose each other. Will this incompatibility exist in the
case of the declaration of existence of the more uxorio or concubinary union and the
subsequent partition and liquidation of the community property community? We consider
no, since the legal effect of the judicial declaration of the existence of the more uxorio
union is to produce the personal and patrimonial effects to which we refer; and that
declaration is not incompatible or exclusive with the partition and liquidation of that
patrimonial community. Both claims - the declaration of the existence of the more uxorio or
concubinary union and the subsequent partition and liquidation of the concubinary
community - can perfectly subsist simultaneously in the same claim of the actor, since the
effects of each claim are not opposed to each other, meaning that The claims from which
they derive have been brought together and claimed in a “concurrent” manner, insofar as
they coexist due to having the same cause or reason for requesting.

It is evident, therefore, that the "incompatibility due to the subject matter" is constituted by
the nature of the legal relationship or the legal state that forms the matter on which the
action of the jurisdictional body is requested. What is at stake is not the value of the cause,
but the nature of the legal relationship; however, as ROCCO states in his aforementioned
work, the criterion of the matter sometimes also intersects with value, as a subordinate that
is under he. In this case, there are two criteria that determine jurisdiction, namely, the value
and the subject matter of the case. But it should be noted that in those relationships or legal
states in which, due to the ideal and non-property nature of their content, the criterion of
value cannot serve, the criterion of the matter serves, objectively and exclusively. For this
reason, perhaps, our Code of Civil Procedure deals in the same section with "The
jurisdiction of the judge for the matter and the value of the claim" (articles 28 to 39). Thus,
for example, article 33 eiusdem establishes that: "When a claim contains several points, the
value of all of them will be added to determine the value of the cause, if they depend on the
same title."

2.2.3. Procedural incompatibility

This incompatibility, understood as the impossibility of accumulating in the same claim

claims that, due to the matter, do not correspond to the knowledge of the same Court, which
must hear the main claim, nor those whose legal procedures are incompatible with each
other or that are excluded. mutually. Consequently, are the procedures relating to the
declaration of the existence of the more uxorio or concubinary union and the subsequent
partition and liquidation of the concubinary community incompatible? No, they are not,
since once that cohabitation union has been judicially declared, once the judgment is
definitively final and enforceable, there is no impediment for the same ordinary civil court
that issued it to enter the phase of the partition and liquidation procedure, as established.
provided in article 777 et seq. of the Code of Civil Procedure. There is, furthermore,
another reason given by the causal connection in that the claims that one has against
another may be accumulated and exercised at the same time, as long as they arise from the
same title or are merged in the same cause of request. Even more so when, as DEVIS
ECHANDÍA maintains in his aforementioned work, this greater ease of accumulating
claims from the same plaintiff favors procedural economy, since it reduces the time, work
and money that several separate processes would entail. And we observe, isn't all this
precisely what is intended from the point of view of procedural economy? Furthermore,
what is the point of carrying out two separate processes? Obviously none.

However, as we have observed in the two decisions cited above, and even though as we
observed, the Constitutional Chamber in the interpretative decision of Article 77 of the
Constitution, in commento, did not resolve that it is necessary to establish judicially the
existence of the union in the first place. concubinage; and that once that decision is
definitively signed, only then could the parties request the partition of that community;
However, the Civil Cassation Chamber of the TSJ goes so far as to provide that “if the
plaintiff intends to divide and liquidate the assets in the concubinary community that she
claims existed between her and her deceased partner, she must have accompanied the
introductory document of the complaint with a certified copy of the judicial declaration of
its existence”; and, furthermore, “in the case in question, two claims were accumulated in
the libel of demand: the mere declaratory action for recognition of concubinary union and
the one for partition of community property, which could not be accumulated in the same
claim, since It is necessary to first establish judicially the existence or not of the de facto
situation, that is, the concubinary union; and, once that decision is definitively signed, the
parties could request the partition of that community, otherwise the judge would be
incurring excess jurisdiction.” Therefore, with LIEBMAN we ask: Can the actor limit
himself to requesting a declaration of certainty, or must he – if he wants to take action –
request a conviction? But where is the rule that constrains the actor to request legal
protection in each case in the most complete form permitted by the factual situation? This
rule, he says, does not exist, and therefore it is not possible to limit his freedom of choice
and prohibit him from being content with the simple declaration of certainty even in the
case that he could obtain the most, that is, a conviction.

Furthermore, the Civil Cassation Chamber affirms that if the mere declaratory action for
recognition of concubinal union and the partition of community property are accumulated,
which could not be accumulated in the same lawsuit, if this were done the judge would be
incurring an excess of jurisdiction. It is correct that jurisdictional activity is subject in
practice to certain limits that, if exceeded, give rise to an invalid decision due to excessive
involvement or give rise to a defect of jurisdiction. Thus, in the civil sphere, which
concerns the matter in commento, there are three limits to jurisdictional activity, in relation
to the subjects, the object and the activity.

As for the subjects, the more uxorio cohabitants are not removed from the scope of
jurisdiction. On the contrary, they can be immersed, not excluded. In view of the object, the
matter relating to the claims for judicial declaration of the cohabitation union and the
subsequent partition of the common property, is a civil matter strictu sensu, not foreign to
it, which is governed not only by the Civil Code but by that of your procedure. Finally, the
activity, in order of the place, time and form of that activity. In the procedural doctrine it
refers to the fact that due to the place there are limits to jurisdiction, in that it cannot hear
claims that are formulated outside the space that determines the geographical extension of
the sovereignty of the State; Due to time, there are limits on the jurisdiction, in that it can
only intervene as long as the regulations to which its implementation is due are in force;
and, due to the form, there are limits to jurisdiction, in that it can only function in the way
that is intrinsically its own, that is, through the collection, examination and action or denial
of claims, remaining outside its normal scope. the possibility that its mandates take the
form of a general or spontaneous declaration.

Obtaining the declaration of certainty of concubinage previously and in a separate trial,

accompanied by a certified copy of the sentence as a requirement for its admissibility,
could it not constitute an obstacle to the exercise of effective judicial protection and a
useless formalism?, since the Venezuelan Constitution in force in its Busy article 26
establishes: “Every person has the right of access to the bodies of administration of justice
to assert their rights and interests, including collective or diffuse ones, to their effective
protection and to promptly obtain the corresponding decision. The State will guarantee free,
accessible, impartial, suitable, transparent, autonomous, independent, responsible, equitable
and expeditious justice, without undue delays, without formalities or useless replacements.”
And having been constitutionalized the Venezuelan judicial process, it constitutes a
fundamental instrument for the realization of justice and this will not be sacrificed due to
the omission of non-essential formalities, as contemplated in article 257 eiusdem.
Therefore, as an example, how to repair the damage that would be caused by the cohabitant
who became insolvent in order not to divide the community assets? More specifically: Who
compensates the cohabitant harmed by this intentional insolvency?

In another thematic context, as long as the union functions as a stable couple, that judicial
declaration does not seem to make sense, nor when the cohabitation union is by law, as in
the case proposed by article 57 of the Family Protection Bill, Maternity. and Fatherhood
(which was discarded):

“The couple that forms a stable de facto union, constituted by an authentic document duly
notarized, that meets the requirements and demands of this Law, which with its material
and intellectual effort contributes to the formation of the assets of the cohabitants, will
access the community the marital assets incurred during the time of their existence of
cohabitation…”.
 However, we understand that the aforementioned accumulation of claims would not take
place if article 49 of the aforementioned Bill had been approved, when the cohabitants
actually formalize the union, or initiate it, complying with the formalities required in that
Bill, that stated (it was also discarded):

“In any case, the dissolution and cessation of the stable de facto union, even if it had not
been legally equated in its effects to marriage, despite having met the requirements of the
previous articles, will give each of the couple the right to access to the division in half of
the assets of the patrimony formed and the fruits that they had obtained for consideration
during the union (...)

And the accumulation of claims in the same claim of the plaintiff would not take place,
since it would be the dissolution and cessation of the stable de facto union that would allow
the subsequent partition of the community assets, even more so if we refer to article 173 of
the Civil Code. , according to which the community of property in a marriage is
extinguished when it is dissolved or when it is declared null. The community is also
dissolved due to the declared absence and bankruptcy of one of the spouses, and due to the
judicial separation of assets, in cases authorized by this Code. Any voluntary dissolution
and liquidation is void, except as provided in article 190. And this last rule establishes that
in any case of separation of bodies, either of the spouses may request the separation of
property, but, if this is by mutual consent, the separation of property will not produce
effects against third parties, until after three months of The declaration has been formalized
in the Subaltern Registry Office of the marital home. Mutatis mutandis, the situation will
not vary, in such cases, in the situation of the more uxorio or concubinary union, in
accordance with the provisions of article 77 of the current Venezuelan Constitution.

Experience shows that economic interest is what generally moves towards that judicial
declaration; and it would make no sense to stay there and go to a separate judicial process
to request the division of the common property. Hence, nothing prevents the accumulation
of two claims in the same claim, since they are not incompatible, contrary to each other or
exclusive and due to the matter they correspond to the knowledge of the same Court, even
more so when this accumulation of claims is not contrary to public order. , to good customs
or to some express provision of the Law. The procedures are not incompatible with each
other either; since the declarative procedure in reference does not have a special procedure
scheduled, which is why it will be aired by the ordinary procedure, as is the procedure
applicable to the partition or division of common property, which will be processed by the
same procedure within the provisions of the article. 77 et seq. of the Code of Civil
Procedure; since obviously the factual union is declared first, when applicable, and
immediately after the sentence is definitively final and enforceable, the division and
property liquidation would be carried out - by the same court - in which case, within the
order of procedural priorities, There is no incompatibility when the first phase is exhausted
and the second phase is completed, since they do not take place at the same time, nor is one
carried out in the absence of the other.

2.2.3. Rulings of the Supreme Court of Justice related to the topic:

In view of what was resolved by the Constitutional Chamber in the interpretative decision
in question, given the importance of the issue, we cite five (5) sentences from the Supreme
Court of the Republic:

2.2.3.1. The Political-Administrative Chamber of the Supreme Court of Justice (hereinafter

CSJ) in a ruling dated May 28, 1975 (Office of the Attorney General of the Republic in
request for expropriation), based on article 767 of the Civil Code, ordered pay to the
concubine the corresponding part of the price of the expropriated property acquired during
the non-marital union, without this having been previously declared by sentence; observed
and arranged:

“… It is noted that during the periods provided for in the posters that were published in the
press in accordance with the Law on the matter to begin the successors of… and the other
possible owners, possessors, tenants, creditors and in general to everyone who had or
intended to have any right in the property to be expropriated,... The owner, as expressed in
the certification relating to property and liens issued by the Subaltern Public Registry
Office..., is the citizen... Now, the owner died on the date …, intestate and without
descendants or other relatives, except the citizen … with whom he had a “non-marital”
union for ten (10) years. Accompanying this document, justification for perpetual memory
raised before the Court...
On February 6 of the current year, Mrs.... stated: “In my capacity as concubine of the
citizen... owner of the parcel of land that is the subject of this expropriation request, in
accordance with the presumption established in article 767 of the Civil Code, According to
the record, I agree to the fair price of said property made by the Appraisal Commission for
the purposes of its prior occupation... and, consequently, I respectfully request that this
High Court, be given to me the amount that corresponds to me of said property. addition,
…"

In relation to Mrs.'s request... it is observed:

In accordance with the transcribed provision, it is observed that in the present case, Mrs. ...
has demonstrated that she lived permanently in a non-marital union with ... during the time
in which he acquired the property object of the expropriation and until the date of her death
and who contributed with his work to the formation and increase of the de-cujus heritage;
and, on the other hand, the aforementioned documentation was not challenged by any
person, nor with respect to the remaining half of the property rights of the aforementioned
land.”

From the aforementioned sentence, we deduce the following:

(i) The claim was not declared inadmissible, since it is assumed that the Chamber clearly
observed that the defendant obtained complete satisfaction of his interest through the same
claim, and not through a different action.

(ii) The Chamber affirmed nothing regarding the accumulation of claims of the petitioner,
since she claimed to be the concubine of the de cujus without having previously
demonstrated the existence of the factual union by means of a declaration of certainty; and
by considering that cohabitation union to be demonstrated, it required payment of the price
of the expropriated property.

(iii) The Chamber also did not observe any excess of jurisdiction, by admitting the
concubine's petition and finding it adjusted to article 767 of the Civil Code, thus
considering the cohabitation union proven with the evidence that the petitioner provided,
without the concubine had previously presented a ruling declaring certainty of the factual
union that he said had existed with Cujus.

(iv) Finally, the Court ordered the price of the expropriated property to be paid to the
concubine. That is to say, the Court not only resolved the conflict raised but also imposed
the law. Presumably, in this way, the Court found the interest of the petitioner concubine
fully satisfied.

2.2.3.2. The Civil Cassation Chamber in ruling RC-0323 of July 26, 2002 (case:
“Arcángel Mora against Ana Ramona Mejías Ruíz”), resolved the following:

"(...) Article 341 of the Code of Civil Procedure provides that the court will admit the claim
"if it is not contrary to public order, good customs or any express provision of the Law."
Otherwise, you must deny admission, stating the reasons for your refusal. Now, article 16
of the same code states the following:

“To propose the claim the plaintiff must have a current interest. In addition to the cases
provided for in the Law, interest may be limited to the mere declaration of the existence or
nonexistence of a right or a legal relationship. The claim for mere declaration is not
admissible when the plaintiff can obtain complete satisfaction of his interest through a
different action.” (Court underlining)

In accordance with the final part of the aforementioned rule, mere declaratory actions that
do not completely satisfy the interest of the plaintiff are not admissible, this by virtue of the
principle of procedural economy, since a court does nothing when hearing about an action
that does not achieve its objective. , such as declaring certainty about a right or a legal
relationship that is considered uncertain, or airing a process that only aims to pre-constitute
evidence for a subsequent trial. Therefore, the complete satisfaction of the actor's interest
becomes a necessary condition for the admissibility of said demand, which if not met
would be prohibited by law, that is, by the same article 16 of the Code of Civil Procedure...

In the specific case, this Court observes that the plaintiff filed a mere declaratory action to
obtain the following pronouncements: a) That between him and the defendant there was a
concubinal relationship from March 1985 to June 1994; b) That during said union both
acquired a property; and, c) That fifty (50%) percent of the aforementioned property
belongs to the actor. Now, it is evident that what is intended with said action is to pre-
constitute evidence that can be used in a community partition trial, based on the share that it
claims to have on a property.

Thus, the action of mere certainty proposed by the formalizing party does not comply with
the requirement demanded by article 16 of the Code of Civil Procedure, since there is
another action in our legal system that allows the actor to completely satisfy his interest,
such as partition and liquidation of the concubinary community. Therefore, the attempted
claim is inadmissible due to the express prohibition of article 16 eiusdem.

All these reasons lead the Chamber to rescind ex officio and without resubmitting the
appealed ruling, since a new ruling on the merits is unnecessary, in accordance with article
320 of the Code of Civil Procedure and, consequently, it declares the claim inadmissible.
filed by the plaintiff, citizen Arcángel Mora, against citizen Ana Ramona Mejías Ruiz, for
direct violation of articles 341 and 16 in fine, of the Code of Civil Procedure, consequently
annulling the aforementioned order of admission dated June 12, 2000, issued by the Second
Court of First Instance in Civil, Commercial and Traffic Matters of the Judicial District of
the state of Táchira, as well as all subsequent actions. “This is how it is decided”

(Our highlight).

From the aforementioned content it is inferred, based on article 16 of the Code of Civil
Procedure, the Civil Cassation Chamber determined the inadmissibility of the concubinary
mere declaratory claim as it did not fully satisfy the interest of the actor, in application of
article 341 eiusdem, regarding to the prohibition of the law to admit the proposed action;
Because in our legal system - he maintains - there is another action that allows the actor to
completely satisfy his interest, such as the partition and liquidation of the cohabiting
property community.

By resolving in this way, in accordance with the provisions of article 16 of the Code of
Civil Procedure and indicating that the action that allows the actor to fully satisfy his
interest is the partition and liquidation of the cohabiting property community; It seems
undoubtedly that the mere declaratory claim is ignored and the direct action would be the
one mentioned, in which case the concubinary relationship would be considered proven
(tacitly, or at least demonstrated in the process of declaration of certainty); However, the
application of article 16 eiusdem, in such a hypothesis, seems to complicate the situation if
in the proposed case the direct action is that of partition and liquidation of the concubinal
union. If so, then the argument of the accumulation of the mere declaratory concubinary
claim and that of partition and liquidation of the same is more reasonable; Because as long
as the cohabitants do not “legalize” their union in accordance with the provisions of the law
that is enacted to regulate more uxorio unions, their union will continue to be factual, in
which case (in the face of the accumulation of claims) there is obviously no possibility of
contrary rulings. or contradictory, they are related, they are not incompatible, nor do they
have substantially different procedures, with some variant in the purely formalist field; with
accumulation influencing (in a strict manner) the procedural speed, without detriment to the
economic resources of the interveners and in terms of time. Furthermore, in the doctrine it
has been held that the legal protection obtained by mere declaration is not qualitatively
different from that achieved by conviction, only in the former being more limited and
restricted than in the latter, so that If you compare them, it turns out that the mere
declaration is a minus with respect to the sentence, not an aliud. Therefore, then, if the
protection that is obtained with the mere declaratory sentence, in its essence has no greater
difference than that corresponding to the protection that is granted to the sentence of
conviction; and even when the difference that exists is specified in the scope that each
protection entails in that the first is more restricted than the second (a minus not an aliud);
For the benefit of guardianship, the restriction does not have the power or force to prevent
the accumulation of the aforementioned claims, since obviously there is no possibility of
contrary or contradictory rulings, they are related, they are not incompatible nor do they
have different procedures so substantial, except for insignificant formalistic signs
prohibited in articles 26 and 257 of the current Venezuelan Constitution.

The theme under discussion finds a temporary obstacle in legal positivism, which still
exerts a decisive influence on the application of the Law, and thus hinders - through
formalisms - the defendant from having access to the material justice of the specific case. In
effect, legal positivism only takes into consideration the rules that must be applied at all or
not applied at all and that is why it is strictly normative, for example, in the case of articles
16, 78, 341 and 777 of the Code of Civil Procedure, in relation to the theme of our
discourse, since they are applied or they are not applied and it seems that their literal
application is more formal, that is, that outside of the rules nothing is possible; leaving out
the argumentation and motivation that make the equity and justice of the specific case
effective, in its solution, thus ignoring the analysis and subsumption of the principles and
constitutional values, since if the solution is taken into consideration in the reasoning It
could be another, in the midst of the contradiction between the established norm, which has
certain invariable formalities from a merely literal point of view, that presents them as rigid
and inflexible. And in response to the principles, it has been stated that they refer to justice
and equity, while the norms are applied or not applied, the principles give reasons to decide
in a certain sense, but, unlike the norms , its statement does not determine the conditions of
its application. The material content of the principle – its specific weight – is what
determines when it should be applied in a given situation. The principles, in addition,
inform the specific legal norms in such a way that the literal nature of the norm can be
disregarded by the judge when it violates a principle that in that specific case is considered
important.

Our Constitution is anti-formalist (in contrast to the extremism represented by excessive

ritual formalities that deviate, because they are such, from their purpose, which is to
contribute, as means or instruments, to the realization of justice); and at the same time
ratifies (the Constitution) the need for the necessary or useful procedural forms in the legal
field, in carrying out the acts of the process; Therefore, the Code of Civil Procedure
contemplates that "The procedural acts will be carried out in the manner provided for in this
Code and in the special laws. When the law does not establish the form for carrying out an
act, all those that the Judge considers suitable to achieve its purposes will be admitted"
(article 7); but, as the Spanish Constitutional Court states, "no formal requirement can
become "an obstacle that unjustifiably prevents a ruling on the merits"; and that "obstacles
that may be considered excessive, that are the product of formalism and that are not
compatible with the necessary right to justice, or that do not appear justified are not
admissible." and proportioned in accordance with the purposes for which they are
established, which must, in any case, be appropriate to the Constitution" (sentence
57/1985).
Therefore, according to the formalist conception of justice, a first meaning of the
expression "legal formalism" refers to a certain theory of justice, in particular, according to
which a just act is one that is in accordance with the law, and unjust that which disagrees
with it, as BOBBIO refers, and more accurately it should be called "ethical formalism",
because it has in common with all formalist theories of ethics the affirmation that ethical
judgment consists of a judgment of conformity of an act with the norm, where good is the
act carried out to comply with the law, and bad is the one carried out to transgress it. The
most common term for this theory is "legalism." Among the many critical analyzes - as he
maintains - to which formalism has given rise, BOBBIO's stands out as very precise and
nuanced. Distinguish four meanings. In the first of them, legal formalism, the theory of
justice is understood according to which the just act is the one in accordance with the law,
and the unjust act is the one that does not conform; with which legal formalism here is
equivalent to the strictest legalism encrypted in the fulfillment of the duty emanating from
the norm. In a second meaning, formalism focuses on the delimitation of the legal (with
respect to the moral, the economic, the customary), without taking into account the content
and only the form, as appears very markedly in the formula of KELSEN, for whom what
characterizes the law is not this or that matter that is the object of regulation nor the aim
pursued but the form and in particular the regulation through the exercise of coercive
power. This is how normativism arises; and in relation to it a third meaning of formalism,
which translates into the conception of legal science as a formal science, whose task is not
causal explanation or teleological justification, but rather construction, system and
dogmatics. A fourth meaning of legal formalism is manifested, according to BOBBIO, in
the theory of legal interpretation, by advocating the hegemony of logical and systematic
interpretation over historical and teleological interpretation (conceptual jurisprudence
versus. jurisprudence of interests) and consider that the judge performs an exclusively
declarative task and never creates the right. Thus, there are four variants of formalism:
legalism, referring to the theory of justice; normativism, concerning the theory of law;
dogmatism, which expresses a way of understanding the science of law, and conceptualism
that is manifested in theory of interpretation

In the contrast of pre-constitutional articles 16, 78, 341 and 777 of the Code of Civil
Procedure with articles 26, 49 and 257 of the current Constitution, those cannot support or
resist its presence in the face of the contradiction that could arise, given its characteristic
formalism in extremis; and specifically with the constitutional principle according to which
"The process constitutes a fundamental instrument for the realization of justice... Justice
will not be sacrificed by the omission of non-essential formalities" (art. 257 CRBV).
Therefore, the justice that individuals demand is one that provides an immediate, effective
response, with procedures, criteria, guidelines, rules and formulas that do not sacrifice the
material justice of the specific case. It is about the need to subvert the standards and rules
repeatedly and traditionally established by the system, which clash with constitutional
principles and values.

2.2.3.3 The Civil Cassation Chamber in ruling RC-00371 of May 30, 2007 (the same case:
“Arcángel Mora against Ana Ramona Mejías Ruíz”), ordered:

“(…) In safeguarding the right of the parties to effective judicial protection and free access
to the bodies of administration of justice in order to materialize the right of defense and
petition, contained in articles 49, 26 and 51 of the Constitution of the Bolivarian Republic
of Venezuela, this Chamber in accordance with the legal provision enshrined in article 320
of the Code of Civil Procedure, and the constitutional principle that reads “...The process
constitutes an instrument for the realization of justice ...” provided in article 257 of the
Constitution, has the prerogative to extend its examination to the merits of the litigation,
without formalities, when it itself detects the violation of a rule of public or constitutional
order.

Therefore, in order to apply a straight and healthy administration of justice, the Chamber
proceeds to ignore the complaints formulated in the formalization document, and
authorized by the power conferred on it by article 320 of the Code of Civil Procedure, it
will make an express statement , to match the appealed decision with violations of public
order and constitutionality that have been verified in the case under trial...

When deciding the previous questions, the Fourth Court of First Instance in Civil,
Commercial and Traffic Matters of the Judicial District of the state of Táchira, declared the
plaintiff's claim valid and inadmissible "...for not having presented reliable evidence of the
existence of the concubinary community, with the presentation of the definitively final
judgment that should have been added to the records...”, a decision that was appealed by
the plaintiff...

To decide, the Chamber observes:

The appellant, in the opportunity to correct the previous issue contained in ordinal 6 of
article 346 of the Code of Civil Procedure, referring to the defect in form of the libel of the
lawsuit, invoked the ruling issued by this Chamber on July 26, 2002 , within the framework
of the process by which he sought the “recognition of the concubinary community and
subsequent partition of the property currently the subject of this lawsuit,” maintaining that
“the Supreme Court of Justice itself recommended this partition procedure.”

Now, by virtue of the statement made by the plaintiff when invoking a decision issued by
this Chamber in which he alleges that the procedure for partition and liquidation of the
concubinary community was recommended to him, it is considered appropriate to highlight
that from the review of the minutes that make up the In this file, the existence of the
aforementioned ruling could be verified, and in order to achieve a greater understanding of
the procedural situation that surrounds the present case, it is necessary to review the content
of the ruling in question issued on July 26, 2002, in file No. 2001-000590, No. 323, which
verbatim says: …

As can be deduced from the previous transcript, citizen Arcángel Mora, in a process prior
to the one in record, sued citizen Ana Ramona Mejías Ruiz in which he sought to declare
that; a) between him and the aforementioned citizen there was a concubinary relationship
from March 1985 to June 1994; b) that during that union both acquired a property; and c)
that fifty percent (50%) of the aforementioned property belongs to the plaintiff.

In this regard, the Court considered: “(...) what is intended with said action is to pre-
constitute evidence that may be used in a community partition trial, based on the share that
it claims to have on a property”; also estimating that "the action of mere certainty proposed
by the formalizing party does not comply with the requirement demanded by article 16 of
the Code of Civil Procedure, since there exists in our legal system another action that
allows the actor to completely satisfy his interest, such as partition and liquidation of the
concubinary community (...)”.
That is to say, on that occasion the plaintiff was told which was the appropriate procedural
route that he should exercise in order to obtain the protection invoked, so he, in compliance
with said mandate, proceeded to demand again the partition and liquidation of the
concubine community, through a lawsuit that initiated the process in which the appeal was
issued, currently in cassation.

Now, the Constitutional Chamber of this High Court, in a ruling dated July 15, 2005, No.
1682, file 04-3301, on the occasion of an appeal for interpretation of constitutional article
77 on the legal figure of concubinage, expressed the following : …

The aforementioned doctrine is clear in maintaining that the simultaneous processing, in the
same procedure, of the claims for declaration of the concubinary community, its partition
and liquidation, constitutes the accumulation prohibited by article 78 of the Code of Civil
Procedure, since for the origin of the second procedure, it is necessary that the existence of
the concubinal relationship has previously been declared, by means of a definitively final
ruling, because this is the fundamental document required by articles 777 and 778 eiusdem
for the admissibility of the same...

From the above, it is evident that there is a point of law analyzed in a divergent manner in
the time in which the procedural iter elapsed, that is, in the course of the aforementioned
trial theses arose that contradicted that decision issued by this Civil Chamber in dated July
26, 2002, which ordered the plaintiff to initiate his claim through the procedure for partition
and liquidation of concubinal community.

In such a way that the Court of Appeal, in order to resolve the legal situation submitted to
his consideration, imperatively had to analyze the particularities of the case, and in this
way, notice the existence of the Judgment of this Chamber, which constituted judged
between the parties, by which it was indicated that the appropriate procedural route to
obtain the requested judicial protection was that of the partition and liquidation of common-
law community procedure.

Thus, although it is true that there are currently two criteria, namely, that of the
Constitutional Chamber and that of this Civil Cassation Chamber, which coincide in
maintaining that in order to claim the partition, the decision must be proven in the records,
as a fundamental document. definitively firm that it has declared the existence of the
concubinary community in a previous process, it is also true that there was a previous
ruling issued by this same Chamber, which guided the conduct of the plaintiff, today
appellant, in a contrary manner.

For this reason, the judge of the respondent, by applying the prevailing thesis, both in the
Civil Chamber and in the Constitutional Chamber, generated a disastrous consequence for
the defendant who, guided by this Civil Cassation Chamber, on that occasion, filed his
demand for declaration of common-law community, partition and liquidation, which
evidently restricted his access to justice, and resulted in a sanction for conduct
jurisprudentially ordered, which in any case was not attributable to him.

It is clear, then, that the ad quem, with its pronouncement, failed to interpret the situation
presented for its consideration in accordance with the commandments proclaimed in the
Magna Carta, in its articles 26 and 257, in which the process is exalted as a fundamental
instrument for the realization of justice and the right of every person to access the bodies of
administration of justice to assert their rights and interests is prioritized.

Likewise, it ignored the prevailing doctrine both in the Civil Chamber and in the
Constitutional Chamber, with respect to the pro actione principle and access to justice in
which the idea referring to such principles that form part of the essential core of the
fundamental rights to effective judicial protection and due process, and for this reason,
interpretations that favor them must prevail. (See. Among others, Sentences No. 351, dated
May 30, 2006, of this Chamber, case: Aura Elena Rincón de Moreno against Heriz Moreno
Toro, and sentence of the Constitutional Chamber No. 5043, dated December 15, 2005, file
N ° 05-1212, case: Alí José Rivas Bolívar and others)-

The above allows us to determine that the appealed ruling created defenselessness on the
part of the plaintiff, now the appellant, since it left him orphaned of defenses, despite the
fact that he proceeded in accordance with what was specified by the Chamber; For this
reason, I act contrary to the mandate contained in article 15 of the Civil Procedure Code,
26, 49 and 257 of the Constitution of the Bolivarian Republic of Venezuela. This is how it
is decided.
In view of the above, and for the sake of effective judicial protection and access to the
bodies of administration of justice, in order to prevent the breach of jurisdictional
protection, this Chamber shows that the appeal judge should have given priority to what
was established in the ruling dated July 22, 2002, which indicated the form through which
the plaintiff should channel his claim

The above allows us to determine that the appealed ruling, by declaring the claim void,
citing reasons contrary to those given by this highest jurisdiction on July 22, 2002, caused
the defenselessness of the plaintiff, today the appellant, and left her helpless in the exercise
of his rights, despite the fact that he himself proceeded in accordance with the provisions of
said decision, therefore, he acted contrary to the mandate enshrined in article 15 of the
Code of Civil Procedure, and articles 26, 49 and 257 of the Bolivarian Constitution of
Venezuela. This is how it is decided.

In this decision, even when the reiterated criterion is maintained that the accumulation of
incompatible claims cannot occur in any case, that is, neither in a simple or concurrent
manner, nor in a subsidiary manner; and that, therefore, the inept accumulation of claims in
cases in which they are mutually exclusive or whose procedures are incompatible,
constitutes grounds for the inadmissibility of the claim; However, the Chamber yields to the
situation presented and renounces in the specific case (with a teleological sense in practice)
the criterion of the accumulation of claims that it affirms is prohibited - in the face of an
exceptional situation such as the one observed - in view of the prevalence of articles 15 of
the Code of Civil Procedure and 26, 49 and 257 of the current Constitution, compared to
the provisions of articles 16, 78, 341 and 777 of the Code of Civil Procedure, that is, it
disapplies them (tacitly) in order to apply the Constitution with preference, from which, in
turn, it is inferred that articles 16, 78, 341 and 777 eiusdem, are relative public order norms
and therefore the rights-duties that they contemplate can be waived; Otherwise the
Chamber would not have failed to take them into account in any case.

With the in commento ruling, it is demonstrated that these procedural rules, even when
considered as public order, being pre-constitutional, must be adapted to the Constitution,
constitutionalized as the Venezuelan judicial process has become, since it constitutes a
fundamental instrument for the realization of material justice in the specific case and this
will not be sacrificed by the omission of non-essential formalities; Therefore, the
simultaneous processing is then allowed, in the same procedure, of the claims for
declaration of the concubinary community, its partition and liquidation, which ceases to be
the prohibited accumulation contracted in article 78 of the Code of Civil Procedure. ,
without it being necessary for the second procedure to have previously declared, by means
of a definitively final sentence, the existence of the concubinary bond, in which case this
(the sentence) mere declarative concubinary relationship is not the fundamental document
required by articles 777 and 778 eiusdem for the admissibility of the same, since otherwise
the claim would have been declared inadmissible, which did not happen but is interpreted
as that such a fundamental instrument can be constituted by declaring the existential
certainty of the factual union, within the process in which they have the various claims have
been accumulated in comment. For this reason, it is admitted that between the citizens, to
which the lawsuit refers, there existed the concubinary relationship that the plaintiff alleged
and that during that union both acquired a property, fifty percent (50%) of which
corresponded to the plaintiff.

2.2.3.4. The Social Cassation Chamber of the TSJ in ruling no. 2106 of October 19, 2007,
in the trial for compensation for work accidents, loss of profits and moral damage brought
by citizen Delia Bautista Rodríguez, acting as successor in title to citizen Anibal José
Rodríguez, against the commercial company Corporación De Servicios Agropecuarios SA;
established the following:

“…the plaintiff submitted the original certificate of concubinage, which is given full
probative value, proving that the plaintiff cohabited for 19 years with the deceased;
certified copy of the birth certificate of his son, ... who is currently twelve years old, ...
from which it is evident that said citizen is the son of the deceased and his common-law
wife, the citizen, Delia Bautista Rodríguez, and her minority; and as a consequence of the
above, this Chamber must establish, based on the considerations of equity and balance that
must guide the judge in the task of quantifying the moral damage, that the compensation to
which the defendant company must be sentenced amounts to amount of ONE HUNDRED
MILLION BOLIVARES (Bs. 100,000,000.00) of which FIFTY MILLION BOLÍVARES
(Bs. 50,000,000.00) must be paid to the plaintiff and the other FIFTY MILLION
BOLÍVARES (Bs. 50,000,000.00), are intended for the minor, Eduardo José Rodríguez
Rodríguez, who will receive them through his parent, in her capacity as legal
representative, which will be guarded by a Court for the Protection of Children and
Adolescents of the District Judicial of the State of Sucre with headquarters in the city of
Cumaná. The designated Court must supervise that this money is used exclusively for the
food and support of the minor until he or she reaches the age of majority, and must pay the
sum that it deems appropriate and in the terms that, at its discretion, are suitable, subject to
to the tasks stated above. This is how it is established” (our highlight).

Based on what was transcribed, we observe: the plaintiff claimed to be the concubine of
the deceased worker, as a result of an accident at work, without having previously proven
the existence of the concubinal union through a definitive declaration of certainty, that is,
she gave for demonstrating that cohabitation union by recording the original of the
certificate of concubinage, to which instrument the Court granted full probative value,
proving from it that the plaintiff cohabited for 19 years with the deceased. The plaintiff
requested that the defendant be ordered to pay the amounts described in the complaint. The
Social Chamber of the TSJ, in the aforementioned ruling, did not observe, much less
declare, any excess of jurisdiction. On the contrary, it also considered the cohabitation
union to be proven, in the accumulated claims, adduced by the plaintiff with the “proof of
concubinage” promoted by the same, and condemned the defendant, based on the equity
and balance that must lead the judge in the task of quantifying the moral damage, to
compensation for the same in the expressed monetary sum, 50% for the former concubine
and the other 50% for their minor child born during the de facto union, as a consequence of
the fact that the cohabitation union, without the need for it to be declared in a prior and
separate process. For this reason, the Court settled the judicial conflict and imposed the
law, finding the interest of the petitioning concubine fully satisfied, liquidating the property
directly.

2.2.3.5. The Constitutional Chamber of the TSJ in decision No. 1682, interpreting article
77 of the Constitution, dated July 15, 2005, with binding character established:

“…In the opinion of this Chamber, given the effects that are recognized to the “stable
union”, it would be a source of fraud for the creditors of any of the cohabitants, to accept
that one sold to the other the common property documented in their name or owned by him
and, consequently, whoever proves that the sale has occurred between them, can invoke the
existence of the union and treat them as common property or, as the case may be, request
the annulment of the deal..." (our emphasis)

“… Now, since there is no action for separation of bodies from concubinage and even less
one for divorce, since the breakdown of the union is a de facto situation that can occur at
any time unilaterally, articles 191 and 192 of the Civil Code are inapplicable, and so it is
declared; However, in the processes aimed at recognizing concubinage or stable union, the
necessary preventive measures may be dictated for the preservation of children and
common property…”

Regarding the aforementioned decision, we can point out the following:

(i) When one of the cohabitants sells the assets to the other to the detriment of the third
creditor. Does it mean that, in such a hypothesis, the concubinary union is considered
proven without the court previously declaring it? Indeed, it seems to follow that if one of
the cohabitants has assets in his name or owns them and sells them to the other, if the third
party creditor of the transferor proves the sale, he can invoke the existence of the de facto
union and treat those assets as of the concubine community or, as the case may be, request
the annulment of the business; with which this union is proven without the need for the
court to previously declare its existence. If this were the case, none of the cohabitants
would have the need for the de facto union to be declared in a process prior to and separate
from the partition and liquidation of community property; previously yes, but in the same
process where the partition and liquidation of the patrimonial community is required, since
its existence was demonstrated when the interest of any of the cohabitants was thus fully
satisfied.

(ii) When the third party has debts against the community. For the Constitutional Chamber
"third parties who have debts against the community - a different case when the third party
has debts against one of the cohabitants - may collect from the common property, and to
that end if the stable union or cohabitation has not been judicially declared, Third parties
may have an interest that is recognized by judgment, in order to collect their debts from the
common assets. To do this, they will have to allege and prove the community, suing both
concubines or their heirs.” In this second case, that is, the third party has debts against the
community (both cohabitants as debtors), in order to demand or collect them, they must
obtain a declaratory judgment of concubinage, in which case it constitutes the fundamental
instrument of the claim, which is why it must be accompany her to it.

(iii) Finally, and by way of conclusion we say, the Constitutional Chamber affirms that, “as
there is no action for separation of bodies from concubinage and even less one for divorce,
since the breakdown of the union is a de facto situation that can occur at any time
unilaterally, articles 191 and 192 of the Civil Code are inapplicable, and so it is declared;
However, in the processes aimed at recognizing concubinage or stable union, the necessary
preventive measures may be dictated for the preservation of children and common
property” (our emphasis). Therefore, in the declarative process of the factual union, the
necessary precautionary measures can be issued for the purpose stated by the Constitutional
Chamber, from which it can be deduced that if they remain firm, they will be effective
within the same process that it will lead, it is assume, having been declared the existence of
the de facto union, the intended partition and liquidation of the common assets, without the
need to resort to a second process. If not, what to do with the precautionary measures
issued? Will the declaratory judgment be taken together with the second comprehensive
partition and liquidation process? By the way, in that ruling “the Chamber considers that, to
claim the possible civil effects of marriage, it is necessary that the “stable union” has been
declared in accordance with the law, which is why a definitively firm ruling is required that
recognizes it; and that currently, a judicial declaration of the stable union or concubinage is
necessary, issued in a process for that purpose.” As can be seen, the Court does not affirm
that this process has to first be declaratory of the existence of the concubinary union, and
then, in a separate process, the partition and liquidation that contains this declaration of
certainty as a fundamental document is resolved.

3. ARTICLES 767 OF THE CIVIL CODE AND 77 CONSTITUTIONAL

For the Constitutional Chamber, in the interpretative decision in comment, "currently the
concubinage that can be declared such is that which meets the requirements of article 767
of the Civil Code, and it becomes one of the forms of stable unions contemplated in the
article constitutional, since it meets the requirements established in the law (Civil Code), to
be recognized as such a union. For now – for the purposes of the aforementioned article 77
– concubinage is par excellence the stable union indicated there.”

When analyzing article 767 of the Civil Code, within the interpretation of article 77 of the
current Venezuelan Constitution, an interrelation occurs between the constitutional field
and the private law, to adapt the pre-constitutional norm to the current Constitution,
according to the Constitution, in accordance to the Constitution, but demanding that
interpretation according to the Constitution cannot be interpretation contra legem. When
there are conflicting constitutional values or when there are conflicting principles, the
Constitutional Chamber of the TSJ is obliged to weigh which prevails, taking into
consideration the constitutional normative unity and the circumstances of the case
according to reasonable arguments. It is about giving life to the constitutional text to
develop what the doctrine has called “Living constitutional law.”

Article 767 of the Civil Code refers to the universal community of profits (art. 1,650 CC)
obtained during the non-marital union, based on the iuris tantum presumption of
patrimonial community to which this rule is contracted; even more so when the legislator
placed article 767 of the Civil Code in the SECOND BOOK (On assets, property and their
modifications), Title IV (On the community), contemplates in article 759 eiusdem that “The
community of property will be governed by the provisions of this Title, in the absence of an
agreement between the community members or special provisions.” As can be deduced, a
specific material community patrimonial area is regulated in article 767 by stating that
“Community is presumed”, which indicates, precisely, that this patrimonial community is
regulated between cohabitants and the effects that the presumption arises between them and
their respective heirs and also between one of them and the successors of the other; as long
as one of them is not married.

The complicated situation of cohabitants in the case of adultery by one or both, in order to
exclude that presumption of community, not only by provision of article 767 of the Civil
Code, but especially based on article 77 of the Constitution, given the prevalence and
protection of marriage by providing: “Marriage between a man and a woman is protected,
which is based on free consent and the absolute equality of the rights and duties of the
spouses…”. However, it has been held that adultery - in the concubinary community - does
not deprive the concubine of the right to claim what is the result of permanent cohabitation
with the concubine; as was held by the Civil Cassation Chamber of the Supreme Court of
Justice in a ruling of October 13, 1982, stating that “the existence of adultery in the
concubinary community excludes the presumption of the existence of such a community
that would simplify the proof. for the benefit of the concubine, but it does not deprive her
of the right to claim what is the result of permanent cohabitation with the concubine and the
increase in her assets as a result of her personal effort, that is, the illicit cause of the union
does not distort the reality of the existence of the union and of the contribution of the
concubine to the increase of the assets that appear in the name of the cohabitant.” However,
the same Chamber in a ruling of March 7, 1991 (case: B. Acevedo vs. J. Chacón), stated
that, “As the presumption of concubinal union is expressly excluded in cases in which one
of the cohabitants is married, in the present case, when this assumption occurred, article
767 of the Civil Code was correctly applied by the Sentencing , to resolve the controversy”

Therefore, for this union to produce the same effects as marriage, it must be taken into
consideration that its interpretation cannot be carried out in isolation from article 137
eiusdem, which requires the obligation of the spouses to live together and remain faithful to
each other, as with the other rules of the Civil Code in order to marriage and that are
applicable. Article 77 of the CRBV is clear in this regard when it requires compliance with
two inevitably concurrent requirements: that the more uxorio union is stable and meets the
requirements established by law. This indicates that if any of such impretermitable
requirements are missing, the union in question cannot be declared judicially for the
purposes of article 767 of the Civil Code, and therefore cannot produce the same effects as
marriage in the property sphere, in How common are the gains or benefits obtained during
the cohabitation relationship? This civil norm would be contradictory if it were not
interpreted in accordance with article 77 of the Constitution, since there are not two types
of more uxorio unions: those regulated in article 767 in reference, and others under the
protection of article 77 in commento. The factual union, to which both norms refer, is the
same. Consequently, currently the concubinage that can be declared such is one that meets
the requirements of article 767 of the Civil Code in the property area, but in correspondence
with article 77 of CRBV in its hermetic breadth (by including both personal and property
effects). ), since, furthermore, there are no two different interpretations, that is, one
interpretation for that legal norm and another for the constitutional norm.

And the Constitutional Chamber also resolves that when article 77 of the Constitution
appears, profound changes arise in the concubinage regime of article 767 of the Civil Code,
since with a stable or permanent union existing, there is no need to legally presume any
community, since This exists by operation of law - if there are assets - with respect to what
was acquired, just as in marriage, during the time that the union lasted and, as a community,
it does not have legal effects between the two of them and between their respective heirs, or
between one of them and the heirs of the other, as contemplated in article 767 of the Civil
Code, but, like the assets referred to in article 168 of the Civil Code, third parties who have
debts against the community may collect of common property, as established by said norm.
However, it is believed that the presumption of concubinary community has effects solely
and exclusively with respect to the concubines among themselves; between the heirs of
each of them; and in the relationships of the man or the woman, with the heirs of one or the
other. But on the other hand, it does not work with respect to third parties: for them the
ownership of the assets that appear in the name of any of the cohabitants is governed by the
rules of common law.

Now, given what was stated by the Constitutional Chamber, it should be noted that the sole
existence of a stable or permanent concubinary union or more uxorio is not enough, since
the cohabitant who has an interest in proving it requires a judicial decision that declares it;
Because only in this way does the iuris tantum presumption arise, in turn, the presumption
of community established in article 767 of the Civil Code. However, the defendant
cohabitant can demonstrate the opposite, proving the absence of cohabitation or
cohabitation with a permanent nature; as well as the lack of singularity regarding the
permanent relationship between the same man and the same woman, and not between him
and several women, or between her and several men; or that he is married or she is the one
who is married; or any other fact indicative of the lack of permanence, or the existence of
an absolute decisive impediment that prevents the exercise of marital capacity. As long as
the specific legislation that regulates the de facto union is not issued, so that the
requirements for its existence are established, the situation of precariousness that
characterizes said presumption will continue to depend on the ruling that declares the
existence of the concubinary or de facto union. However, the identity of marriage cannot be
assumed or absorbed by that legislation, and the demands of each autonomous identity must
be maintained as different realities.

Indeed, with the appearance of article 77 of the current Venezuelan Constitution, the
community property regime, referred to in article 767 of the Civil Code, undergoes
profound changes, because it extends its content beyond the purely literal, penetrating that
regime to lead it to submit to the constitutional text itself, that is, that the property effects
will be spread in all distribution possibilities as if that factual union were like marriage,
except if one of the cohabitants is married and other situations own and exclusive of
marriage; Otherwise, the marriage, which would be equal to the more uxorio union, would
have no meaning. There is no doubt that this principle - when one of the cohabitants is
married - by provision of the same norm indicates that the structure and the new system
created by article 77 eiusdem refers to one of the requirements established in the law, since
otherwise If this were the case, the marriage would have been reduced to ashes as far as its
inter-couple or interpersonal and patrimonial structure is concerned, generating serious
conflicts in family life.

How would the insurgent conflict be resolved, when one of the cohabitants attempted to
judicially claim the marital or legitimate property from the legitimate heirs, from the
surviving spouse not legally separated from bodies and property? In article 41 of the
Family, Maternity and Paternity Protection Bill, which was rejected, it was established:
“When the existence of prolonged de facto separations is demonstrated between married
people in accordance with the provisions of article 185- A of the Civil Code and the
expiration period for the exercise of criminal action for adultery has expired, stable de facto
unions between couples of a man and a woman will produce the same filial, patrimonial
and succession effects as in marriage, in accordance with the regulations of this Law.” That
is, if a person was married and de facto separated from the other for more than five (5)
years, as provided in article 185-A of the Civil Code, and at the same time maintained an
adulterous union with another, and it had been extinguished the expiration period for the
exercise of criminal action for adultery, stable de facto unions between couples of a man
and a woman would produce the same patrimonial and succession effects as marriage.

So, if within that same situation, FRANCISCO LÓPEZ HERRERA believes, there could
also be a concubinary community between one of the spouses and a third person, it would
result that all the acquisitions made by any of said concubines while the concubinage exists,
should also belong to these in half, although it will normally be the same marital assets.
Now, it is absolutely impossible to simultaneously assign half of the same assets to three
people; which confirms and ratifies the intention of the legislator in the sense that the
concubinary community cannot exist if one of the concubines is united in marriage with
another person.

Pursuant to article 767 of the Civil Code, community is presumed, unless proven
otherwise, in those cases of non-marital union, when the woman or man, where applicable,
demonstrates that she has lived permanently in such state even though the property whose
community is you want to establish appear in the name of only one of them. As can be
seen, this presumption of community is not iuris et de iure, since it does not apply if one of
them is married. The presumption is iuris tantum of patrimonial community since it admits
evidence to the contrary, and arises with the sole proof or demonstration in court of having
lived permanently in a non-marital union and that the court declares by means of a ruling
the existence of that factual union; However, this presumption of community is not a full
right, even when property has been acquired during it. Under the rigor of such a theme, the
insurgent presumption is iuris tantum (the law admits the existence of the fact, unless the
contrary is proven) and not iure et de iure (full and absolute right), since then the law would
not admit evidence in On the contrary, it is impossible to avoid the application of certain
norms contained in the Civil Code, due to the reference that article 77 in commento
expressly makes, by establishing that stable de facto unions between a man and a woman
that meet the established requirements in the law they will produce the same effects as
marriage. In this case, these legal requirements, within the inevitable game of
presumptions, have to do with articles 148 and 164 of the Civil Code, in accordance with
articles 151, 152, 822, 823 and 824 eiusdem, among others.
In fact, according to article 148 of the Civil Code, between husband and wife, if there is no
agreement to the contrary, the gains or benefits obtained during the marriage are shared in
half; while according to article 164 eiusdem, it is presumed that all existing assets belong to
the community until it is proven that they belong to one of the spouses (presumption iuris
tantum).

As can be seen, these two norms enshrine, each of them, its corresponding presumption of
community property: the iuris tantum presumption of community of property during
marriage, provided that there is no matrimonial capitular regime that excludes it (arts. 141-
147, CC); It is understood that, in accordance with the provisions of article 151 of the Civil
Code, those acquired during the marriage by donation, inheritance, legacy or by any other
lucrative title are the property of each spouse; property derived from natural actions and the
capital gain of said property, treasures and abandoned movable property found by one of
the spouses, as well as clothing, jewelry and other belongings or objects for personal or
exclusive use of the wife or husband; and that, as established in article 152 eiusdem, those
acquired during the marriage become the property of each spouse: By exchange with other
property belonging to the spouse, by right of withdrawal exercised over the property owned
by the respective spouse and with money from his or her estate. . for dation in payment
made to the respective spouse for obligations arising from one's own property; those
acquired during the marriage or for consideration, when the cause of acquisition has
preceded the marriage; compensation for accidents or for life insurance, personal injury or
illness, deducting the premiums paid by the community; for a purchase made with money
from the alienation of other property of the acquiring spouse; and, for a purchase made with
the purchasing spouse's own money, provided that the origin of the money is stated and that
the purchase is made for themselves.

In accordance with the provisions of article 767 of the Civil Code, it is not possible to
accept that the requirements demanded by law, for a stable de facto union between a man
and a woman to produce the same effects of marriage, in accordance with the provisions of
article 77 of the CRBV, are reduced to those established in the aforementioned article 767;
Otherwise, it would be easier to claim those effects by actually living together than by
getting married. Due to the same formalities required for the celebration of the marriage
act, as well as the exhaustive requirements established for the marriage to be terminated,
the spouses would be at a disadvantage when comparing the formal environment for the
beginning of cohabitation and marital life. as well as the procedure for the extinction of
both links. Easier, in all aspects, the dissolution of the cohabitation union than the marital
one. But, also, when it comes to asking and comparing which side there are more rights and
duties, there is no doubt that there are in marriage, since most of them - not all - are
legislated. We would be in the presence of a factual situation without demands, without any
formality and meager responsibility in terms of rights and duties, with the ease involved in
breaking or extinguishing the factual union, in the face of the requirements established in
the law to dissolve the marriage. In the factual union, it would only be necessary to
demonstrate that the woman or the man, if applicable, has lived permanently in such a state
(concubinary union) for that union to produce the same personal and patrimonial effects of
marriage, and that is not possible since The constitutional norm itself – article 77 – requires
that the cohabitation union, in order to produce the same effects as marriage, must comply
with the requirements established in the law, and the law is not only article 767 of the Civil
Code, but all other norms. legal provisions pertaining to the personal and patrimonial
effects that the marriage bond generates, as far as possible and real.

4. PUTATIVE CONCUBINATE

4.1. What the Constitutional Chamber of the TSJ affirms

In the ruling in comment issued by the Constitutional Chamber, it declared the existence of
putative concubinage, stating the following:

“(…) Likewise, the Court must examine the possibility for one of the members of a union
or concubinage, of the existence of putative concubinage that arises when one of them, in
good faith, is unaware of the married status of the other. In the opinion of this Chamber, in
these cases the rules on putative marriage, applicable to property, will operate with the
good faith cohabitant (…)”

In response to what was expressed by the Chamber, three (3) inferences are especially
observed:
(i) The presence of putative concubinage that is generated when the cohabitant in good faith
ignores the married status of the other. It seems, then, that it will not be putative given the
existence of the other deciding impediments to validly contracting a marriage. If so, then
the putative concubinage - to which the Constitutional Chamber refers - is specified only to
the type that it determines in a simplified or reduced manner.

(ii) This lack of knowledge or ignorance of the marital status of the other cohabitant leads
to the person in good faith enjoying the benefits or effects of the putative marriage, in
relation to the assets. Does it mean that, in such cases, the rules of the property regime in
marriage apply to the putative concubinage, but not those pertaining to the personal effects
thereof? If so, what happens with the personal effects between couples and in relation to the
sons and daughters?

(iii) For the existence of putative concubinage, the existence of the de facto union must first
be judicially declared by means of a final ruling and, of course, the declaration of nullity of
the same must be produced by means of a final decision. Without the declaration of nullity
one cannot properly speak of putative concubinage, just as putative marriage cannot be
affirmed without the ruling declaring its nullity.

The required good faith consists of the subjective state of belief, on the part of one or both
cohabitants, at the time of initiating cohabitation in a stable manner, since it exists as a
more uxorio union, that they start it validly even if there is a factual error. or by law, as
long as it is excusable, the subsequent knowledge of the error being indifferent. Good faith
is presumed, unless proven otherwise, which corresponds to the person who challenges it.

Therefore, regarding the first inference - about the presence of putative concubinage that is
generated when the concubine in good faith ignores the married status of the other - it
indicates that this type of concubinage only occurs when the cocubine in good faith ignores
the married status of the other; In which case, then, the relationship would not be putative
for any reason other than the existence of a previous marriage of the cohabitant in question.
It would be putative only when the violation of article 50 of the Civil Code occurs, due to
bigamy.
Under this assessment, the putative concubinage will depend solely on that reason (the
existence of a previous marriage ignored by the concubine in good faith), but it will not be,
making a comparative simile with what was affirmed by the Court and by force of the
provisions in article 77 of the CRBV, among others, in the following cases:

1) It cannot be putative when the cohabitant is unaware that the woman has not turned
fourteen (14) years of age, or the man that he has not turned sixteen (16) years of age (art.
46, CC); even though the age prescribed in article 46 will not be required, when: 1. The
minor woman has given birth to a child or is pregnant; and, 2. The minor male when the
woman has conceived a child that she recognizes as hers or that has been judicially
declared as such (art. 62, CC). However, persons who have not reached the age required to
validly contract a marriage cannot be challenged: 1º When the couple have reached said age
without the annulment trial having been initiated; 2º When the woman who is not of the
required age has conceived. However, since the putative marriage is one declared null but
valid for the spouse who contracted it in good faith, with effects from its celebration until
the ruling of nullity, then it should be observed that the more uxorio union would be
putative for the cohabitant. that he was unaware of the other's incapacity in relation to the
provisions of article 46 in commento, but that it is not putative because the Court only
refers to putative concubinage when the concubine in good faith ignores the married status
of the other.

2) Nor could concubinal union be putative, when the case arises of suffering from manifest
and permanent impotence (art. 47, CC). Mutatis mutandis, the same consideration as above
and in relation to the subsequent notes on the same topic.

3) Likewise, in the case of the interdict due to insanity or the person who is not in his or her
trial (art. 47, CC).

4) Nor could the concubinary union between ascending and descending cohabitants be
putative, nor between affines in a straight line (art. 51, CC).

5) Marriage between siblings would not be putative (art. 52, CC).

6) The more uxorio or concubinary union between uncles and nephews, nor between uncles
and the descendants of the nephews, could not be putative. Nor between brothers-in-law
when the one who produced the affinity was dissolved by divorce (art. 53, CC).

In relation to the second inference, regarding the lack of knowledge or ignorance of the
marital status of the other cohabitant, leading to the cohabitant in good faith enjoying the
benefits or effects of the putative marriage, in relation to the assets (property order effects);
The decision of the Chamber tacitly excludes the personal effects between concubines and
children, since the existence of putative concubinage – as the Chamber affirms – arises
when one of them, in good faith, is unaware of the married status of the other. In the
opinion of the Chamber, in these cases the rules on putative marriage, applicable to
property, will apply to the concubine in good faith; under which assessment the putative
concubinage is reduced or simplified in its effects, when one of the cohabitants, the one in
good faith, ignores the married status of the other.

Such a reduction would seem to imply, as a consequence, that the effect will be patrimonial
and not personal (between the cohabitants and in relation to the children), but that in reality
the simplification does not operate here because it is impossible for the personal
cohabitation effect not to occur. And in relation to children, in that case, they are children
as if they had been conceived and born in the marriage union. Furthermore, once filiation is
proven, the child conceived and born outside of marriage has the same status as the child
born or conceived during marriage in relation to the father and mother and their blood
relatives, as contemplated in article 234 of the Civil Code.

In consideration of the third inference, it is necessary to previously produce the judicial

declaration of the existence of the concubinage through a final sentence, as the only way for
the putative concubinage to exist as a consequence of the judicial declaration of its nullity,
even when nothing is said about it. in the in commento decision. This is so because
according to article 127 of the Civil Code, a marriage declared void produces civil effects,
both with respect to the spouses and with respect to the children, even born before the
marriage, if it has been contracted in good faith by both parties; and if there was only good
faith on the part of one of the spouses, the marriage has civil effects only in favor of him
and the children. If there was bad faith on the part of both spouses, the marriage only
produces civil effects with respect to the children.

If we talk about putative concubinage it is because putative marriage is admitted. Thus, the
putative marriage consists of one that is declared null or annulled, when the circumstance
occurs that it is considered valid for one or both spouses, and consequently produces effects
for the spouse or spouses in good faith, always for the benefit of the children, from its
celebration until the date of the sentence declaring the nullity. Consequently, in
comparative contrast, putative concubinage (putative: that is predicated without being so)
can be understood as one declared null when the circumstance occurs that it is considered
valid only for the cohabitants in good faith, always for the benefit of the children and not
only in the area of assets, from its inception until the date of the ruling declaring nullity.
This means that putative concubinage cannot exist without a ruling that declares it, which
could be complicated to understand. The adjective putative, with valid effects, must come
from a ruling that declares it so. As a general principle, nullity pronounced by means of a
final judgment leaves things in the same state in which they were before the act declared
null, which is why it produces retroactive effects (ex tunc) to the day of celebration of the
act. That sentence is declaratory for that same circumstance or reason.

If this principle were applied to a marriage declared void, it would leave it as if it had never
been celebrated, in which case tremendous problems would be created in relation to the
children born in that union, as well as the assets acquired. Given this circumstance, the
notion of putative marriage (putare: believe, suppose) arose in Canon Law to regulate the
effects of nullity when the marriage was contracted assuming one or both parties assumed
that the bond was valid; that it had been celebrated through good faith, of one or both, by
ignoring the defect that gave rise to the nullity or annulability of the marriage act, defect or
defect that exists at the time of the celebration. Hence, this conception of putative marriage
is an exception to the aforementioned general principle regarding the effects of annulment.
Good faith will be understood, then, as the lack of knowledge of the marriage impediment
at the time of celebration on the part of the person who contracted the marriage, or both; as
well as that contracted with defects of consent.
However, it is discussed in the doctrine that there will be no good faith due to ignorance or
error of law, and that it will not exist due to ignorance or error of fact that is not excusable,
unless the error is caused by fraud.

Regarding the error of law, article 2 of the Civil Code contemplates that "Ignorance of the
law does not excuse its compliance", therefore the error of law does not prevent the legal
effects produced by lawful acts, nor will it obviate the responsibility for illegals. This
principle contains, in turn, that of legal certainty, as the foundation of social order,
otherwise it would be very easy to escape the consequences or effects of the act, alleging
and proving that the law was ignored. Indeed, as BELLUSCIO observes, could someone
claim that he did not know that he could not marry his daughter, his sister or his daughter-
in-law? Or that he was prohibited from bringing a prepubescent or insane person to the
nuptials? Or that he could not marry a second time without dissolving his previous
marriage? Or that he could not do so with the widow of the person he killed? Or that the
law did not allow him to abuse error, deceive or offer violence to achieve the celebration?
Or that knowing he was impotent he could not get married?

In the case of a factual error, it is stated that it must be excusable, or must have just cause to
make an error, except in the case of fraud where the error arises from the deception or trick
of the other party or through the action of a third party. Well, the example given by
EDUARDO ZANNONI in the case of the bigamist, whose bad faith is presumed because
his previous marriage was not dissolved or annulled, could hardly claim ignorance of the
impediment of the ligamen. Therefore, it can be presumed that the bigamist knows that he
is married and that he cannot validly contract a second marriage. But suppose that the
bigamist alleges and proves an excusable error, as would occur in the following case: his
spouse from his first marriage disappeared during a kidnapping and, some time later, public
news of his death was given when a body was identified by police. police, registering his
death. But later it turns out that the identification of the body was wrong because the spouse
who was believed to be dead reappears, who in reality had only been held by his kidnappers
and finally released. Once the annulment of the second marriage is raised, the bigamist
must invoke and prove his good faith, that is, the excusability of his error, or what is the
same, the reason for error. All of this, without prejudice to the fact that if the circumstances
of the case were to prove these facts, the judge would have to classify the bigamist as being
in good faith even if he had not expressly invoked the excusable error.

The Chamber considers that to claim the possible civil effects of marriage, it is necessary
that the “stable union” has been declared in accordance with the law, which is why a
definitively final ruling is required that recognizes it. For that same reason, it is necessary
to consider the necessary declaration of putative concubinage, so that it produces the same
effects as putative marriage. In reality, it is complicated and even difficult to admit that the
more uxorio union can be declared null or annulled by a final judgment, when no formality
or compliance with certain requirements was used for its birth, as in the case of marriage;
But if such a judicial declaration of nullity is not preceded, then how could one properly
speak of putative concubinage?

Concubinage declared void? The putative marriage is considered valid for the spouse who
entered into the marriage in good faith and always for the benefit of the children, from the
celebration until the date of the ruling declaring its nullity. For this reason, it is difficult to
demand the annulment of the de facto or concubinary union, since its birth depends on the
reciprocal will of the cohabitants without any other formality established by law, and its
extinction or dissolution is produced by reciprocal agreement, as well as by unilateral
decision of only one of the cohabitants. It would be necessary to first judicially declare the
existence of the de facto union, and then declare its nullity based on the existence of a
decisive impediment that did not authorize the celebration of the marriage, and that one of
the cohabitants acted in good faith to make it happen. putative for him. For example, if one
of the de facto cohabitants, in good faith, is unaware or ignorant of the married status of the
other, in such a case the rules of putative marriage applicable to property will operate, with
concubinage in good faith, as stated in the Constitutional Chamber; There is no doubt that
in order for the effects of a putative marriage to be applied in practice, a judicial declaration
is required that affirms that the cohabitant was in good faith, through the declaration of
nullity of the de facto union, since, otherwise, It would not be possible to speak of putative
concubinage. As can be seen, in such a case, we are in the presence of a problem that is
difficult to understand and solve, since for the Constitutional Chamber the existence of
putative concubinage arises when one of them, in good faith, is unaware of the married
status of the other, and in These assumptions will work with the concubine in good faith,
the rules on putative marriage, applicable to property.

With great reason, article 127 of the Civil Code states: “A marriage declared void produces
civil effects, both with respect to the spouses and with respect to the children, even born
before the marriage, if it has been contracted in good faith by both parties. If there was only
good faith on the part of one of the spouses, the marriage has civil effects only in favor of
him and the children. If there was bad faith on the part of both spouses, the marriage only
produces civil effects with respect to the children.” Consequently, what would be the cause
or reason that serves as a basis for the claim for nullity or annulability of concubinage? The
court would first have to declare the existence of concubinage, then declare it null or
annulled based on the legal norm specifically infringed, and, likewise, establish that this
union is putative because it was contracted or celebrated in violation of a decisive
impediment that did not allow its celebration, but in good faith by one of the concubines or
by both, according to the factual circumstances of the specific case.

The putative marriage, to be such, would then have to meet several requirements:

(i) In order for marriage to be declared putative, it must have been contracted. This implies
that the celebration of the marriage must be verified, since no one can claim the civil effects
of the marriage if they do not present a certified copy of the record of its celebration, except
in the cases provided for in articles 211 and 458, as stipulated in article 113. of the Civil
Code. In the absence of registration of the marriage certificate in the Registry intended for
this purpose, as established in article 115 eiusdem, when there are indications that due to
fraud or fault of the respective official, the marriage certificate has not been registered, the
spouses may request that the existence of marriage is declared, according to the rules
established in article 458, provided that the following circumstances occur: 1° That
authentic proof of the publication or posting of the marriage poster is presented, except for
the cases provided for in articles 70, 96 and 101.

(ii). Annulment of marriage by definitively final ruling, so that it can be considered valid
for the spouse (or both) in good faith and always in relation to the children, from its
celebration until the date of the ruling declaring the nullity. As long as the annulment does
not occur, the marriage celebrated irregularly will continue to produce effects as if it were
valid. Likewise, as long as the concubinage is not declared null, one cannot speak of
putative concubinage.

(iii) Good faith. Since our legislation - says ISABEL GRISANTI AVELEDO DE LUIGI -
grants effects, with respect to children, to a marriage celebrated in bad faith by both parties,
good faith loses its status as an autonomous requirement of the putative marriage and
becomes a subjective presupposition, which serves only to indicate the extent of the effects
in relation to the spouses.

However, since the annulment sentence pronounced by the judge is declarative, projecting
its effects retroactively, to the day of the celebration of the act, such principle in the marital
field has a different connotation when the marriage was celebrated under the belief of one
of the contracting parties, or by both, that there was no impediment at the time that would
invalidate the act, ignoring the defect that could subsequently lead to the annulment of the
marriage. Therefore, the marriage that is declared void will not be putative for the spouse
who acted in bad faith, and if both acted in bad faith it will not be putative for either of
them and, consequently, the effects of validity will not include either of them. the
contracting parties, that is, that the doctrine of putative marriage constitutes an exception to
the general principle in order for the effects of nullity.

Therefore, for the more uxorio or concubinary union to be considered putative, it would be
required: (i) That the more uxorio union be declared by the competent Court through a
definitively final ruling. This requirement constitutes the first requirement to demonstrate,
by means of a judicial declaration, the existence of that union and inevitably the date of its
beginning, since without it it cannot be known with certainty from when it begins to
produce the putative effects and until when . (ii) That such union be declared null or
annulled by that same type of sentence and with putative value for the cohabitant in good
faith, from its celebration until the judicial declaration of nullity, and always for the benefit
of the children, even when the Constitutional Chamber stated nothing in this regard. The
problem at this point is that the concubinary union is not celebrated, since up to now there
are no formalities leading to it in our legislation, and as we have observed, its birth is only
consensus, which makes it difficult to prove its beginning in any way. clear and decisive.
(iii) Good faith, which means for the cohabitant more uxorio, the lack of knowledge of the
existence in the other of a cause or motive that hinders or prevents the celebration of the
marriage between them, that is, the existence of a decisive impediment that prevents
concubinage between them, leading to its nullity. Good faith will consist of the erroneous
belief of one or both cohabitants that they initiated the concubinal union, without there
being any legal impediment that hindered it at the time.

4.2. Effects of putative concubinage

The Constitutional Chamber affirms the existence of putative concubinage, when one of the
cohabitants is in good faith, unaware or unaware of the married status of the other, in which
cases the rules of putative marriage applicable to both parties will operate, with
concubinage in good faith. the assets (property effect). Even though the Court does not
refer to the effects of a personal and family nature (between the cohabitants and in relation
to the sons and daughters), they are impossible to avoid.

In such case, even though the criterion of the Constitutional Chamber refers to the
cohabitant who is unaware or ignorant of the married status of the other, in which case the
rules of putative marriage applicable to property will operate, with concubinage in good
faith (effect patrimonial); However, the putative concubinage thus declared by a final
judgment, as a sine quam non requirement, would inevitably produce the following
personal and property effects:

4.2.1 Regarding cohabitants

4.2.1.1 Personal and family effects: (a) when the concubinage declared void does not
produce putative effects in favor of any of the cohabitants, it is considered that the
concubinary state never existed between them. (b) The more uxorio union is putative for
both cohabitants when the bond is considered valid and legal from the date of the beginning
of that union, until the date of annulment, in which case the concubinary state exists for
them during that period and produces there all effects of validity, but it disappears and is
extinguished upon the declaration of nullity. (c) If the concubinage is putative for only one
of the cohabitants, the bond produces effects for the past, from the date of the beginning of
the concubinage union until its annulment (since if the nullity of the union is not declared,
there will be no putative concubinage , just as there is no putative marriage if its nullity is
not declared); and produces all its personal and family effects in favor of the cohabitant in
good faith, but does not determine any effect in favor of the cohabitant in bad faith. The
first is considered a cohabitant from the date of the beginning of that de facto union until
the annulment, and the second, as if he had never been united in concubinage.

4.2.1.2. Effects on concubinary agreements: Nothing prevents cohabitants from stipulating,

agreeing or agreeing, in relation to the assets they acquire during cohabitation, without
them being called concubinary capitulations. It seems not to be understood why the
cohabitants cannot at least enter into an agreement in the sense of how they will manage the
assets obtained during it, even when that agreement is not called capitulations within the
context of articles 141, 143, 144, 145, 146 and 147 of the Civil Code; Well, it may happen
that a man and a woman agree to begin a more uxorio cohabitation, and for this purpose
they grant a registry instrument – before starting such cohabitation – establishing that the
assets that each one acquires are excluded from the concubinary community. Will such an
agreement or pact have value or not between them and third parties? If it has value in that
way. The law does not prohibit it, but rather it allows them to establish and regulate
between them, through convention, a bond of that nature (art. 1,133, CC). Therefore, when
both concubines have been in bad faith (for example, both know that they are married), the
agreement is annulled both ad-nunc and ex tunc; In the case of putative concubinage for
both cohabitants, the pact or agreement will be considered valid until the date of
annulment; and, in the case of putative concubinage for only one of the concubines, the
more uxorio union is valid for the one who acted in good faith, and as if they had not
existed for the other.

4.2.1.3. Effects on the community of property: (a) If the annulled concubinage is not valid
as putative for any of the cohabitants, the community of property corresponds to the
children born in that union. If there are no children, the assets are divided between the two
cohabitants. (b) In the case of a putative more uxorio union for both concubines, the
property is divided between them. (c) When this union is putative for only one of the
cohabitants, the assets correspond entirely to the same.

4.2.1.4. Regarding donations on the occasion of concubinage: (a) If both cohabitants are in
bad faith, the donations will correspond entirely to the children. If there are no children, the
donations will be void. (b) The union is putative for both cohabitants: if the donation was
made to both, it will belong in half to each cohabitant. If it was only for one of them, he
will keep the donation. (c) Putative concubinage for only one of the cohabitants: the
donations made to both will correspond to the person in good faith. Donations given in
favor of the cohabitant in bad faith must be returned to the donor.

4.2.1.5 Effects on the intestate hereditary vocation: (a) If both cohabitants have acted in bad
faith, each loses the intestate hereditary vocation with respect to the other. (b) Case of
putative concubinage for both cohabitants, if one dies before the judicial declaration of
nullity of the concubinage, the surviving former cohabitant does not have an ab-intestate
hereditary vocation in such succession, since the putative concubinage would take effect in
the past and from the celebration of the concubinage until the date of its declared nullity,
but not into the future. The same does not occur when one of the cohabitants dies prior to
the ruling declaring the nullity of that union, since the survivor in good faith would inherit
it. (c) When concubinage is putative for only one of the cohabitants, if the person in bad
faith dies, the person in good faith succeeds him/her. If the person dies in good faith, the
other cohabitant does not inherit it intestate. (d) As of the sentence, the annulment ceases
the reciprocal succession vocation. However, in the case of marriage, for example, if the
death of one of the spouses occurs during the annulment trial, the other maintains that
vocation because the marital bond is producing the effects of a valid marriage; to a when
the annulment is pronounced later.

4.2.2 Effects on children

(a) Effects on parental authority. If the annulled concubinage is valid as putative for both
cohabitants, they must be considered as ascendants of their children and therefore exercise
the rights and duties corresponding to parental authority.

(b) IF concubinage is valid as putative only in relation to one of the cohabitants, the person
in bad faith cannot claim those rights over his or her children and parental authority
corresponds to the person in good faith.

(c) If both cohabited in bad faith, the annulled concubinage is not valid as putative with
respect to any of them and it is up to the judge to decide which one to grant custody of the
minors.

5. CONCLUSIONS

As has been seen, the Constitutional Chamber in the judgment in question equates the de
facto union or more uxorio to marriage in two different ways: a) Partial equation. Since
marriage - according to the Court - is born and tested in a different way than concubinage,
or any other stable union, the difference - in its birth as well as in the probationary order -
means that both cannot be fully equated to marriage. ; and, consequently, the effects of
marriage (personal and property) do not occur entirely in the de facto union. In this case,
the more uxorio or de facto stable union (concubinage) and any other stable union are not
necessarily similar to marriage, that is, neither equal nor equivalent. It follows from the
decision of the Chamber that if the de facto union were born and proven in the same way as
marriage, then it would be fully equated to marriage and would automatically produce all
its effects. Obviously, both institutions are born and tested differently, but it is possible to
think that it is not such a difference that prevents the production of the same effects
(personal and patrimonial), but rather different reasons, such as that they are not
comparable, they are not the same. nor similar; even though article 77 of the Constitution
seems to equate them, but relatively. Furthermore, the Court does not indicate which other
stable unions it refers to, leaving them in a twilight zone. b) Total equity equalization. The
Chamber equates the genus “stable union” with marriage, and thus it must have, like it, a
property regime (community of property due to the equality). This is an equation limited to
assets, which seems to leave aside what is related to personal effects (inter-cohabitation and
in relation to sons and daughters), by not affirming them in that context.

The factual union and its judicial declaration. For the Constitutional Chamber, the
concubinary union or more uxorio “It is a factual situation that requires judicial declaration
and that is qualified by the judge, taking into account the conditions of what should be
understood by life together”; Therefore, “First of all, the Chamber considers that, to claim
the possible civil effects of marriage, it is necessary that the “stable union” has been
declared in accordance with the law, which is why a definitively firm ruling is required that
recognizes it. Currently, a judicial declaration of the stable union or concubinage is
necessary; dictated in a process for that purpose.”

The qualification referred to by the Chamber is made by the judge, taking into account the
conditions of what should be understood by life together. However, the expression “life in
common” is not the same as “stability” and does not include the plurality of the
requirements established in the law, which is included in article 77 of the Constitution ("...
"Stable de facto unions between a man and a woman that meet the requirements established
by law will produce the same effects as marriage." Featured by us). Therefore, for the
factual union to be declared judicially by means of a definitively final ruling for the
purposes of article 77 in reference, the judge must find that this cohabitation is stable and
meets the requirements established in the law. Common life, in comment, only constitutes
an integrating element of the concept of stability.

The Chamber establishes that currently, a judicial declaration of the stable union or
concubinage issued in a process for that purpose is necessary. This last statement is
accurate. However, it does not indicate that in the "process for that purpose" it is exclusive
of the accumulation to it of the claim of partition and liquidation of the common
coexistence property, in the way we have analyzed, since any prohibition must be express,
not It is tacit or understood. The Chamber does not prohibit the accumulation of claims and
nevertheless the Civil Chamber declares the claim inadmissible due to the accumulation in
it of the mere declaratory concubinary claims, the partition and liquidation of the property
community, as we have observed. For this reason, stability and requirements are combined
in the concepts of permanence, singularity, cohabitation, notoriety and the absence of
decisive impediments that prevent the exercise of the ability to live together.

The Constitutional Chamber “has to examine the possibility for one of the members of a
union or concubinage, of the existence of putative concubinage that arises when one of
them, in good faith, is unaware of the married status of the other. In the opinion of this
Chamber, in these cases the rules on putative marriage, applicable to property, will apply to
the concubine in good faith.” As can be seen, for the Chamber the presence of putative
concubinage is generated when the concubine in good faith ignores the married status of the
other, reducing the scope of what would be putative concubinage only to the absolute
deciding impediment of prior bond (art. 50, CC), when there are more impediments of such
a nature that also mean that cohabitation, in its effects, does not harm the cohabitant in
good faith. Therefore, it seems that it will not be putative given the existence of the other
deciding impediments to validly contracting a marriage. If so, then the putative
concubinage - to which the Constitutional Chamber refers - is specified only to the type that
it determines in a simplified or reduced manner. Likewise, the lack of knowledge or
ignorance of the marital status of the other cohabitant - according to the Chamber - leads to
the person in good faith enjoying the benefits or effects of the putative marriage, in relation
to the assets. The Chamber does not say why in the cases referred to, the rules on putative
marriage, applicable to property, will operate with the good faith cohabitant, and it omits to
refer to (or include) the personal effects that the putative cohabitation inevitably has to
produce in benefit of the cohabitant in good faith, and of the sons and daughters. Does it
mean that, in such cases, the rules of the property regime in marriage apply to the putative
concubinage, but not those pertaining to the personal effects thereof? If so, what happens
with the personal effects between couples and in relation to the sons and daughters?
Finally, for the existence of putative concubinage, the existence of the de facto union must
first be judicially declared by means of a final ruling and, of course, the declaration of
nullity of the same (concubinary union) must also be produced by means of a final decision.
The Court observes nothing in this regard. However, without the declaration of nullity one
cannot properly speak of putative concubinage, just as putative marriage cannot be affirmed
without the ruling declaring its nullity.
4 legal differences between marriage and common-law partnership

There is a lot of confusion between the concepts of "marriage" and "common-law couple."
Marriage is the stable union between two people who commit to a life together, to help
each other, to act in the interest of the family they form, to remain faithful to each other and
to share domestic responsibilities and the care of children. The figure of marriage is
perfectly described in our legal system, which defines its effects, both in the personal and ...

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1. Introduction

The family, an institution that appears in history as a community created by marriage and
composed of parents and procreated children, as well as other people living together or not,
united by ties of blood or by submission to the same authority; It is the primary social axis
where the individual begins to revolve around others.

Aristotle defined it as a coexistence desired by nature itself for the acts of daily life, thereby
indicating that it has its basis in nature itself, in order to fulfill the purpose for which it is
desired or required. This goal is the conservation of life, either to satisfy physical and
spiritual needs, or to engender and educate new generations.

Due to the importance it has with respect to society, the family has been called "social cell",
since the same relationship exists between the two as between the cell and the living
organism. Within society it constitutes the essential piece and one of the foundations that
sustains it; That is why it has been said that animal species that do not have a family also
lack a society. Hence, it constitutes a social phenomenon as old as humanity itself, and
Christian philosophy places its origin in the dawn of humanity, in the first couple created
by God, which, multiplying, has filled the earth.

Although marriage is essentially a relationship of people that gives rise to the fact of
family; The Law is equally concerned with regulating those stable de facto unions that
constitute a home, obeying customs and idiosyncrasies, being a more frequent social reality
that the legislator has begun to deal with, but which have not yet been the subject of a
serious and serious study. rigorous in our order.

Both our legislation and those of other Latin countries lack a complete legal framework that
fully codifies the personal, property and third-party relationships of the couples that make
up these natural marriages. Calmly and very little by little, they have been recognizing
certain rights of concubines; However, it has been the work of the courts through their
verdicts that have provided appropriate legal certainty to the circumstances arising from
these cases.

Faced with such a deep-rooted context that is increasing day after day, comprehensive legal
regulation is mandatory and even peremptory, seeking the formalization of the relationships
born within these unions, aimed above all at further protecting the interests of the parties,
strengthening their security. , considering that it is a cultural alternative to marriage,
ensuring that it has the same effects as a civil marriage. In this way it would transform what
until now embodies a cultural option into a legal one, taking as an example legislation such
as those of Bolivia, Brazil, Colombia, Cuba, El Salvador, Panama, and even to a lesser
extent, ours.

In Venezuela more than half of the families emanate from an extramarital union. And this
figure cannot easily go unnoticed. That is why the question raised in this work is whether,
in accordance with the provisions of the Civil Code and the National Constitution, is it
beneficial or not for the Venezuelan family that a constitutional precept orders that every
stable de facto union generates the same effects? than marriage?
The methodology used in this work is bibliographic in nature, outlining the situation of the
different types of family (marriage and cohabitation), as well as analysis of the regulations
referred to to address the proposed topic.

2. What is Marriage?

"The love that exists between two, wife and husband, is the closest, as is well known,
because nature begins it and grace increases it, and custom understands it, and many other
obligations bind it very closely."

(Fray Luis de León)

Man, since the beginning of time, has felt the need to live in community, surrounded by his
fellow men. Thanks to its evolution, this way of life was established under the name of
society, having as its central core the union of men and women to reproduce their species,
thus establishing the family as its fundamental cell, within the legal, religious, and of life in
all its modalities. And the Law has taken part in it, not by creating it (since it configures a
natural phenomenon), but by systematizing its fundamental aspects. This is how marriage
has its origin, as a key intervention, specifically within Family Law.

The word marriage, according to the opinion of one sector of the doctrine, is derived from
the Latin word matri munium which means burden, burden of the mother. This could lead
to erroneous conclusions, since marriage does not have to represent a heavy burden for
women. Therefore, there is another sociological point of view that considers the phrase
matrem muniens, which implies defense, protection of the mother.

There are legal-formal, teleological and sociological definitions for marriage. Combining
them into one, we could say that it is "the legal union of a man and a woman to establish
between them a full and perpetual community of life" (Grisanti: 2000, p.88). Marriage
constitutes the union of man and woman consecrated by law, forming a perfect unity of
physical and spiritual life. It is, therefore, a total union of life, which makes the husband
and wife one flesh (just as Genesis says), merging them into a superior unity, through a
legal act by which they establish an alliance between themselves. that the law sanctions.

Its importance lies in its condition as the basic seat of personal relationships, and therefore,
of society; since its primary purposes are, among others, to provide mutual assistance and
complement between both spouses, constituting the key to perpetuating the species, as well
as training new generations, instilling in them essential human values.

This institution, within Modern Civil Law, contemplates the following qualities:

Unity, because it is carried out between a single man and a single woman; as contemplated
in article 77 of our current Constitution, and the Civil Code in its article 44.

Perpetuity, since marriage is celebrated with the aspiration that this union last over time;
and your consent must be granted without subjecting it to any term or condition.

Secularism, because it produces legal effects.

Solemnity, because it requires formalities provided by law for its celebration.

Consent, since the full will of both parties is required regarding the act they are performing.

State intervention, through a competent public official, who must give a statement
regarding the new union that has been witnessed.

Various legal currents have attempted to establish theories about the origin of marriage.
Among them, the Contractual Theory stands out, according to which marriage is a contract
with peculiar characteristics, since it constitutes an agreement of wills between the parties
(contractor) to create a new legal bond: the legal marriage bond; the Theory of the Complex
Legal Business, since it considers it as such, framed by the consent of the parties and the
solemn presence of the State; the Theory of the Institutionalized Contract, because it comes
from the mutual agreement between the contracting parties and, once perfected, it receives
from the authority of the law the norms that govern it and the effects it produces. According
to this, Venezuelan legislation suggests that the Theory of Marriage is considered a
Contract, taking into account Chapter II, Title IV of the First Book of the current Civil
Code, which is titled On the formalities that must precede the marriage contract.

Precisely, by the very fact that it is a contract, marriage gives rise to a series of effects, as
peculiar as itself. A general effect, and of a fundamental nature in this matter, is constituted
by the creation of a new state for the subjects: the marital state; generating a bond that is
more than just a kinship, since it is a more intimate union, a marital bond. This emerging
condition of spouses determines an interweaving of reciprocal rights and duties, also giving
rise to both personal and property relationships.

Regarding personal relationships, it is necessary to refer to the rights and duties of spouses,
mentioned above. These are enshrined in the Venezuelan Civil Code (CCV), which in its
article 137 establishes that:

With marriage, the husband and wife acquire the same rights and assume the same duties.
From marriage derives the obligation of spouses to live together, remain faithful and help
each other.

A married woman may use her husband's surname. This right subsists even after the
dissolution of the marriage due to death, as long as a new marriage is not contracted.

The refusal of a married woman to use her husband's surname will not be considered, in
any case, as a failure to comply with the duties that the law imposes as a result of marriage.

Likewise, in the first section of article 139 it is contemplated that:

The husband and wife are obliged to contribute, to the extent of each one's resources, to the
care and maintenance of the common home, and to the burdens and other marital expenses.

Thanks to such provisions, it is possible to conclude that the Venezuelan legislator includes
the Principle of Equality of Men and Women within these regulations, since both assume
identical duties, which constitute rights enjoyed by the other. These duties will be of a legal
nature (they are enshrined in the law), ethical (they are entrusted to the affection and
conscience of the husband and wife), reciprocal (each of the spouses has them towards the
other, and of public order. (they are not relaxed due to the desire of the spouses).
It is important to highlight that the establishment of the marital domicile must be designated
in accordance with the mutual agreement of the spouses, as stated in article 140 of the
CCV.

Finally, with regard to property effects, there is the property regime in marriage, made up
of the group of rules that frame the economic aspects that arise from the spouses among
themselves or between them and third parties. These norms can be accepted by the
consensus of wills of both subjects, or otherwise, they are determined by the law itself.

This situation originates due to the marriage itself; Because although its original purpose is
non-pecuniary, in the permanent coexistence of two people a series of expenses that cannot
be postponed arise that need to be corrected. And although it has been previously said that
the duties of a man and a woman in marriage are equal, consequently both must bear the
expenses in a shared manner, since the economic support of the home falls on them;
including their personal care as well as care with people to whom they are obligated
(children, sick relatives, creditors, etc.).

When the couple decides to reach an agreement prior to marriage to regulate their assets
within marital life, we speak of Marital Capitulations. If this procedure is not carried out,
the law provides for a supplementary regime: the Limited Community of Gains.

Matrimonial Capitulations are agreements made by the couple about to get married to
determine the treatment that will be applied to their assets, once the marriage has taken
place, and as to its duration.

These pacts are characterized by being bilateral (since they are made by both parties); They
are also accessories to the marriage (since they cannot be celebrated independently of it, if
the marriage does not take place or if it is declared null, the capitulations have no effect);
They are solemn (for their proper execution it is necessary to comply with the legal
formalities); They are very personal (just as marriage is, since they are carried out
exclusively by the couple); They are unappealably prior to the marriage (if they are not
previously agreed upon, they can no longer be so, with said union being subject to the
supplementary regime); and finally they are immutable (they cannot be modified after the
marriage is celebrated).
On the other hand, there is the supplementary legal regime: the Limited Community of
Profits. This comes into play when future spouses do not exercise the right granted to them
by law to choose their marital property regime, filling the void that this lack of choice could
cause. It is enshrined in article 148 of the CCV which establishes:

Between husband and wife, if there is no agreement to the contrary, the gains or benefits
obtained during the marriage are shared in half.

Thus, the Limited Community of Property can be defined as a type of limited community,
constituted by the shared ownership of a set of assets, which are considered common to
both spouses; such assets being the profits or benefits obtained by any of them during the
marriage; maintaining that property apart from the existence (absolutely legal and
otherwise obvious) of each husband's own property.

Because it is special and generic, it has qualities that differentiate it from the ordinary
community of goods. Among these we can mention the fact that it can only exist between
spouses, being prohibited the universal profit partnership that arises between people who do
not enjoy this relationship (according to article 1650 of the CCV). The co-ownership fees
remain unchanged, corresponding to half of the profits (article 148 of the CCV). It cannot
be established prior to the celebration of the marriage (article 149 of the CCV). Its
systematization corresponds to the legal text, and never to the will of the parties. And
finally, it does not pursue lucrative purposes, but rather seeks the due fulfillment of the
obligations that marriage brings with it.

Then, within this community of property there are two sets of assets: those belonging to
each spouse, and those that become shared by both. The latter are made up of the profits
obtained from their work, as well as the returns (fruits, income and interest) generated by
common and own goods. Likewise, property acquired with other community property
constitutes community property.

Article 158. The right of usufruct or pension is part of the property of the spouse to whom it
belongs; but the pensions and fruits corresponding to the first twenty years of the marriage
correspond to the community in four fifths. From the age of twenty onwards, all fruits and
pensions correspond to the community.
Article 161. The assets donated or promised to one of the spouses, by reason of the
marriage, even before its celebration, belong to the community, unless the donor states
otherwise.

Article 163. The increase in value due to improvements made on the spouses' own property,
with community money, or by the spouses' industry, belongs to the community.

The assets of each of the spouses, that is, those that are not part of the community property,
are expressed in the CCV as follows:

Article 151. The property of the spouses is that which belongs to the husband and wife at
the time of contracting the marriage, and which they acquire during the marriage by
donation, inheritance, legacy or by any lucrative title. Property derived from natural
accessions and the capital gain of said property, treasures and abandoned movable property
that one of the spouses finds, as well as clothing, jewelry and other belongings or objects
for personal or exclusive use of the woman or the husband, are also property. husband.

Article 152. The assets acquired during the marriage become the property of the respective
spouse:

By exchange with other property belonging to the spouse.

By right of withdrawal exercised over the respective spouse's own assets and with money
from his or her estate.

For dation in payment made to the respective spouse for obligations arising from one's own
property.

Those acquired during the marriage for consideration, when the cause of acquisition has
preceded the marriage.

Compensation for accidents or life insurance, personal injury or illness, deducting the
premiums paid by the community.
For a purchase made with money from the alienation of other property of the acquiring
spouse.

For purchases made with the purchasing spouse's own money, as long as the source of the
money is stated and that the purchase is made for themselves.

In case of fraud, the actions of the injured parties to have the acquired property declared
judicially as to whom corresponds.

It is essential to mention the assumption of Copyrights, because these remain the property
of the spouse who produced them through their intellectual activity, even when they have
been acquired during the marriage.

The economic maintenance of the home alone does not revolve around the properties and
transactions of the spouses; Both must also bear (half) the so-called common burdens,
constituted by the responsibilities or debts acquired by either of the spouses or both, but
which due to their origin should not be borne individually, but in community, as indicated
in the articles. 165 and 166 of the CCV.

To conclude, this limited community of property obviously includes clauses through which
the bond generated by that matrimonial property regime can be dissolved. Our CCV, in its
article 173, exhaustively lists such causes of separation; That is, they cannot be imposed by
the particular will of the spouses, thus being public order. When, for any of the reasons
stated, the community of property is extinguished, this means that it is replaced by an
ordinary community between the spouses and the former spouses, or their heirs. This will
be governed by the regulations relating to the community, and will only come to an end
once it is liquidated.

The Venezuelan legislator considers the family as a fundamental element for the growth
and development of society; and proposes the safeguarding of said situation from the
systematization of that institution called marriage, seeking to prevent, for erroneous or
malicious reasons, any of its members (the spouses), as well as their descendants and all
those related who have an interest in the conjugal community, may be affected in any way;
keeping this figure protected so that at no time are the effects that it intrinsically entails
being distorted, causing damage, as it is the pure and total union of a man with a woman.

3. The Figure of Concubinage

"In the unity of the two, man and woman are called to exist reciprocally, one for the other."

(John Paul II)

Although marriage appears to be a practically universal institution, regulated both by law

and by the different existing religions; Over the years, the figure of concubinage has
progressively grown under its shadow.

Specifically in Venezuela, it could be stated that seventy percent of families live in

extramarital unions, it has even been said that "Venezuelans have a vocation towards life in
concubinage" (González: 1999, p.7).

This mode of social action has been defined as a monogamous union between a man and a
woman who, although they have the capacity required to celebrate a marriage, maintains a
de facto partnership (being one that, despite being legal, has not complied with all the legal
requirements for the constitution of marriage) permanent and responsible, whose purpose is
to build a family, fulfilling the reciprocal duties of cohabitation, support and respect, all this
under the appearance of a marriage.

Concubinage in our society appears as a latent reality that is outside the legislation and that
requires to be taken into account imminently, due to its current rapid increase, and it can be
seen that every day more and more couples decide to form an extramarital union as a
solution to their situation.

Among the elements that underpin this society are some, such as:
Instability, a key difference between marriage and cohabitation, since it does not have a
formality that includes at least the appearance of permanence. Cohabitants do not have a
true legal bond that unites them, despite the fact that said union is made with a view to a
truly stable and lasting future.

Notoriety of the community of life, cohabitants must live together as husband and wife, that
is, simulating the relationship as a couple that exists within marriage, and subjectively
knowing such a situation. This should also be noticed by the community around them, thus
implying a certain advertising nature.

Monogamous union, none of the members of the couple can maintain a relationship other
than that of legitimate and permanent concubinage, since adultery is not admitted, as in
marriage (since this constitutes a crime classified in our Penal Code).

Individuals of different sex, analogically applying the principle determined by the CCV in
that it states that marriage can only be celebrated between a man and a woman. Thus, any
possibility of incongruent unions between people of the same sex is prohibited.

Ability to marry, that is, they can meet all the requirements that the law establishes for this
purpose; even though they decide not to celebrate their union in such a way.

This social phenomenon is produced by a great diversity of factors, both economic and
cultural. As for the economic ones, it is guaranteed that they constitute the almost primary
reason, since at the low levels that make up our society it is much more difficult to impose
the legal figure of marriage, opting for an easier way, represented by extramarital unions,
which They do not carry any legal obligation. In relation to cultural causes, there is the lack
of development in education; Because this causes the Venezuelan with limited resources to
not fully understand the importance of a systematized family bond.

It seems imperative to delimit the border that covers the concept of the concubinary
relationship itself, that is, its personal aspect. To do this, it is essential to clarify within
which legal-institutional concepts the situation in question is located. It is undoubtedly
unquestionable that concubinage represents a merely family state, since it basically fulfills
its functions. Despite this, it only represents said circumstance and does not constitute it as
such, because it does not have a biological link between the couple or a firm marriage
sentence that can support it; Thus in this case there is the existence of an apparent family
state, based on the facts and not on the Law. So, before the community in which they live,
cohabitants develop an apparent conjugal life as husband and wife (when the union is
public and not hidden, of course), without being united by the marriage bond granted by
law.

This situation has a scene in our legal world because the extramarital relationship implies
an intrinsic value in itself to which the Law cannot turn its back, because if it did it would
be going against its very essence, which is that of organizer of the formalities required by
the legal assumptions that arise day after day in society.

The legal protection granted to concubinage by the Venezuelan legislator, through a

reduced (but not unavoidable) organization, covers certain aspects of that personal nature
that was previously indicated. The first part of article 70 of the CCV states:

The documents indicated in the previous article and the prior posting of signs may be
dispensed with when the couple wish to legalize the existing concubinal union in which
they have been living. This circumstance will be expressly certified in the marriage
certificate...

Thus, taking into consideration that the factual situations to which the norm refers are
increasingly numerous, and that the function of Law in this case must be to call upon the
citizen to properly safeguard the basic legal institutions of society, Just as marriage is, a
fundamental pillar of family protection, the Code exempts from the introduction of the
provisions for the celebration of marriage referred to in its article 69, so that couples who
are motivated to legalize their concubinal union, do not find any impediment to doing so,
and enjoy the due legal protection that their position requires.

The CCV considers one last aspect of the extramarital relationship on a personal level in its
article 211:
It is presumed, unless proven otherwise, that the man who lived with the woman in a
known concubinage on the date on which the birth of the child took place, has cohabited
with her during the period of conception.

Consequently, it is observed once again that our regulations seek to safeguard the
extramarital phenomenon as the real foundation of the manifestation of the family, by
stating that under the iuris tantum presumption the proof of filiation of the child born to a
cohabiting couple is facilitated.

Various statutes such as the International Convention on the Rights of the Child and the
new Organic Law for the Protection of Children and Adolescents (LOPNA), in addition to
the reform of our Civil Code in 1982, among others, have ratified freedom of probation for
the establishment of filiation, have eliminated the differentiation between natural and
legitimate children (valid for the Code of 1942), all in order to promote the full and stable
development of the personality of every child, protecting them from any kind of abuse or
contempt that could arise. suffer; Because safeguarding their situation is simultaneously
safeguarding the future growth of society, with citizens being considerate of themselves
and those around them.

In such case, once the possession of concubine status has been proven with respect to the
man with whom she cohabits at the time of childbirth, it is assumed that he lived with her at
the time of conception; thus avoiding the uncertainty regarding paternity that is very
common in these cases. The norm is equating this iuris tantum presumption with the
presumption of paternity in marriage.

On the other hand, when the act of recognition of the child born out of wedlock is not done
voluntarily, the mother of the child (or even the child personally, depending on the
situation) may resort to all types of evidence; including hematological and heredobiological
examinations, proof of possession of child status, etc. Once filiation is established, the
father is obliged to provide his child with alimony (understood as the provision of all the
means required for his child's support). Likewise, they will begin to exercise parental
authority (which will consist of the comprehensive protection of the subject entrusted to
their parents) and guardianship (referring to the due satisfaction that must be given to the
demands of the minor, monitoring and educating them. ) of his descendant, but jointly with
the mother, as established by law; as long as any of them do not incur the impediments
provided for by the LOPNA to practice these parental duties. All these cases of parental
responsibility will be carried out while the child is a non-emancipated minor, or in the case
of a disqualified adult.

Thanks to these aspects provided for in the CCV for the adequate regulation of
concubinage, it is possible to affirm that it, like marriage, gives rise to certain pecuniary
effects that involve both members of the de facto union, as well as third parties who are
related. to her.

The existence of the apparent family status that generates concubinage gives rise to the
emergence of an apparent Law, according to authors such as Bossert, reaching the situation
where negotiations and legal relations of the couple (or one of its members) with third
parties arise. just as if they were a real marriage, enjoying its apparent pertinent effects; as
long as this union is well-known and stable (seeking to equally support the interests of
others involved in good faith); elementally circumscribing within said legal relationships
the duties that cohabitants will have with their children, if they have them, analyzed above.
Thus, this simulation of a marriage in a stable de facto union must be duly proven through
presumptions, a demonstration par excellence in these cases according to Venezuelan
doctrine, whether iuris tantum (which admits evidence to the contrary) or iuris et de iure.
(which do not admit evidence to the contrary); pointing out the certainty of the kinship that
relates the couple involved in the negotiation.

The main presumption that our Code considers regarding the patrimonial nature of any
extramarital union is found in article 767 and refers to the Concubinary Community:

Community is presumed, unless proven otherwise, in those cases of non-marital union,

when the woman, or the man, as the case may be, demonstrates that she has lived
permanently in such a state even though the assets whose community is to be established
appear in the name of just one of them. Such presumption only has legal effects between
the two of them and between their respective heirs and also between one of them and the
heirs of the other. The provisions of this article do not apply if one of them is married.
Opening a parenthesis in this regard, it is possible to ensure that the legal situation of these
de facto unions (as they are also called) has been modified with the introduction of the
current CCV, since in 1942, in its article 767 it determined that:

Community is presumed, unless proven otherwise, in those cases of non-marital union,

when the woman demonstrates that she has lived permanently in such a state and has
contributed with her work to the formation or increase of the man's assets, although the
assets whose community you want to establish appear documented in the name of only one
of them. Such presumption only has legal effects between the two of them and between
their respective heirs, and also between one of them and the heirs of the other, except in the
case of adultery.

From the analysis of both provisions, it is deduced that our current Code has produced
benefits in terms of the situation of women, since the repealed one imposed on them the
absolute burden of proof of having lived permanently in concubinage (through the best
evidence which is the possession of status that is required to be proven: treatment, fame and
continuity), as well as with your work having promoted the growth of your partner's assets
(regardless of whose name it is in); thus making the path of man easy to take advantage of
it. In addition, the terminology used was modified, replacing the adultery exception by
altering it with the formula that indicates that the article is not applicable when one of the
cohabitants is married.

Then, the concubinary community is linked to a "quasi-community contract" regarding the

economic relations of the couple that makes up the de facto union; because it can be
considered that they have all the characteristics of the same, including voluntariness (the
union comes from a mutual agreement), legality (since there is no rule in our legislation
that considers concubinage as a crime), as well as the fact that the work (of both or only
one) is also deliberate and legal, and generates a reciprocal duty between the parties.

This legal situation is regulated according to the intention of the legislator in accordance
with what custom determines and with the application of the analogy of the management of
the conjugal community in many aspects; allowing cohabitants to enjoy the right to share
the common mass of property that has been generated within their union, as occurs in the
case of the limited community of property in marriage, as long as there is certification of
the binding context in which both individuals are found and that neither is under another
union (marital), because if any of these were missing, there would be no presumption of the
community, it simply would not exist.

4. Article 77 of the Constitution

Is this equivalence favorable or not?

"It is impossible for the Republic to be worth anything if the families, which are its pillars,
are poorly founded."

(John Bodino)

As a consequence of the family way of life that society adopts as a substantial structure to
support its foundations, human beings necessarily require an authority that, taking into
account the common good, indicates the norms by which men can and should regulate said
behavior. . For this purpose, the figure of Family Law appears within a highly concrete and
specific aspect, regulating this situation. But, far above this, there is an ordinance of
supreme character that protects and welcomes the rights of all equally, through its
imperative and unavoidable profile. This is Kelsen's primary norm, the Magna Carta of the
nation; in which all the most basic principles conceived in the mind of the legislator are
collected, to enshrine fundamental rights through the imposition of duties to respect them.

On January 23, 1961, the Venezuelan Constitution was sanctioned, which will replace the
dictatorial regime established by General Pérez Jiménez, after being removed from power
by the revolution carried out a year earlier. This novel legislative proposal sought
protection for the family but, perhaps in a very reduced way, considering the situation that
the country was beginning to experience at that time. It recognized its position as the
foundation of society, ensuring that its economic or moral conditions would not be
disturbed. Marriage was protected, because as explained above, it constitutes the legal
institution par excellence for preserving the family. But, it did not ensure the protection of
the community originated within a non-marital union, limiting this matter to the few
provisions that the Civil Code considered in this regard.

Currently, as a result of a process of change in the political and institutional sphere through
the actions of a National Constituent Assembly, the new Constitution of the Bolivarian
Republic of Venezuela, elected by popular decision in 1999, has been promulgated. This
introduced a series of changes in the conventional structure that our old text brought by
implementing rights that, despite being inherent to the human person, were not expressly
provided for in it.

In relation to the point discussed in this chapter, it is worth mentioning among those new
rights that are no longer understood to have specific regulation, article 77 belonging to the
chapter that deals with social and family rights; according to which:

Marriage between a man and a woman is protected, based on free consent and the absolute
equality of the rights and duties of the spouses. Stable de facto unions between a man and a
woman that meet the requirements established by law will produce the same effects as
marriage.

According to this assessment, it is possible to verify that our current supreme norm
recognizes the plurality of families;

That is to say, it does not limit their birth exclusively to marriage, but the legislator realizes
that it is necessary to elevate those arising from stable de facto unions to constitutional
status in the same way, since the rule has a specific purpose and It is no longer a simple
formal requirement with no relation to the social reality of the nation. This purpose consists
of protecting the family within which the main values of society are promoted, thus seeking
the adequate ethical and personal growth of all individual citizens of the Republic, through
the intermediation of the law.

Then, the present discrimination between "matrimonial family" (legal) and "concubinary
family" (natural) is eliminated, since as long as such stable de facto union between a man
and a woman complies with the already stated requirements of article 767 of the CCV, just
like the stability that must exist in the couple (similar in that sense to the relationship of
spouses), enjoys the equality it deserves, emanating the same duties and rights as said
institution (marriage), whether they are expressed in the Code or in the Constitution itself.

Furthermore, the provision leaves open the possibility that the situation of concubinage
may be regulated more thoroughly in the future in special laws or in some modification of
the CCV, since the idea proposed by the constitutional text is vague, as it does not specify
exactly. What will be the effects of marriage that will be applied correlatively to the
concubinary union, preventing the home that emerged from it from being undermined, as
well as the family values of its members.

Therefore, in effect this determination seems favorable, since those subjects (the same
common-law spouses, for example) who, under any circumstance, will be harmed, either
economically or even morally, because the law does not protect the situation in which If
they are involved, they can resort to the analogy that the Constitution is providing them,
simulating the effects of the marital union within that natural nexus.

5. Conclusions

After reviewing the theoretical framework referring to what the institution of marriage is
and what the figure of concubinage is, in addition to what the ultimate purpose of the
family actually is; as well as the relevant regulations (National Constitution and Civil
Code) and review whether its application is the most appropriate regarding the situation we
currently experience; It is possible to consider that due to the situation of concubinage it is
more than justifiable to promote its formalization and systematization, that is, to encourage
the recognition of not only patrimonial but also personal effects, as well as the
commitments and powers of protection, fidelity, coexistence, correct affiliation, among
others; because in our case it implements an extremely common alternative of founding a
de facto home to carry out a way of life homologous to that which occurs in marriage.
This is why it is the primary duty of the current National Assembly (state legislative body),
in view of the decision it made in its constituent capacity by including as a constitutional
prerogative in article 77 of the Constitution the assimilation regarding the effects of marital
union to concubinary union, based on the assumption that both are family builders; the
creation of a special law that regulates all the legal gaps left by the aforementioned norm,
since they are not fully provided for in the provisions of the CCV previously analyzed.

The family constitutes the foundation of every human society and it is within it where the
emotional ties essential to transmit culture and ideological and moral values from one
generation to another are created. Therefore, the Law as a protective instrument of personal
relationships has the responsibility of providing all the protection that it requires, regardless
of the way in which it originates.

6. Bibliography

CHALBAUD ZERPA, R. Social Institutions. UCAB Editions.

Caracas, 1994. pp. 97-124.

GONZÁLEZ FERNÁNDEZ, A. The Concubinage. Buchivacoa Publishing House.

Caracas, 1999. 331p.

GRISANTI AVELEDO DE LUIGI, I. Family Law Lessons.

Vadell Brothers Editors. Caracas, 2000. 547p.

Legislation used:

Venezuelan Civil Code of 1982.

Constitution of the Bolivarian Republic of Venezuela (2000).

Constitution of the Republic of Venezuela (1961).

Work submitted by:

María Alejandra Pérez G. (19 years old) and

egumi@cantv.net

m Beniyen Tesara V. (20 years)

3rd students Year of Law.

Concubinage (stable de facto union) in the Venezuelan Legal System

10/13/2014 ChacinDouglas

This research that I carried out is dedicated to examining the different problems that arise
today between concubinage and children in our society. In Venezuela it is observed that
machismo predominates, we notice that women are treated as an object and are belittled for
their condition, society adopted this and it became something beyond a tradition, it became
a conviction that comes from the majority. of fathers, family men and heads of households
who transmit these false and erroneous teachings to their children or who, in the absence of
a father figure, the child sees that he can and is justified in doing the same thing that his
father did when he left his mother. .
All these convictions, adoptions and assimilations that have been acquired and accepted in
society are the cause of so many single mothers, so many early pregnancies, so many
venereal diseases and the total decline of the pure union of marriage.

This problem is increasingly intensifying, not only are children, adolescents and young
people bombarded by parents, men or women around them, but also a large part of this
problem comes from the media, also from music, friendships. erroneous, drug addictions,
the encouragement of the people who surround a being to lead an unbridled life, unsafe and
unstable sex and prone to problems that we see that burden Venezuelans more every day,
such as crimes of passion, abuse of the woman out of jealousy of the man and not knowing
his personality.

In the midst of these problems, the State and its legislation have done their best to formalize
stable de facto unions so that they are not simply sexual unions between a couple but rather
that they acquire the same weight as the institution of marriage and thus are valued. a
relationship between a man and a woman.

The law has also made it very clear that marriage and stable de facto unions must always be
between a man and a woman, never between people of the same sex, and for it to be legally
recognized as a stable de facto union, it must be reaffirmed that It has stability,
cohabitation, permanence, uniqueness, notoriety and absence of impediments to the
exercise of cohabitation capacity such as adultery, the two people must be single.

Concubinage in our society appears as a latent reality that is outside the legislation and that
requires to be taken into account imminently, due to its current rapid increase, and it can be
seen that every day more and more couples decide to form an extramarital union as a
solution to their situation. Among the elements that underpin this society are some, such as:
Instability, a key difference between marriage and cohabitation, since it does not have a
formality that includes at least the appearance of permanence.

Cohabitants do not have a true legal bond that unites them, despite the fact that said union
is made with a view to a truly stable and lasting future.

Notoriety of the community of life, cohabitants must live together as husband and wife, that
is, simulating the relationship as a couple that exists within marriage, and subjectively
knowing such a situation. This should also be noticed by the community around them, thus
implying a certain advertising nature.

Monogamous union, none of the members of the couple can maintain a relationship other
than that of legitimate and permanent concubinage, since adultery is not admitted, as in
marriage (since this constitutes a crime classified in our penal code).

Individuals of different sex, analogically applying the principle determined by the

Venezuelan Civil Code in that it states that marriage can only be celebrated between a man
and a woman. Thus, any possibility of incongruent unions between people of the same sex
is prohibited. Ability to marry, that is, they can meet all the requirements that the law
establishes for this purpose; even though they decide not to celebrate their union in such a
way.

This social phenomenon is produced by a great diversity of factors, both economic and
cultural. As for the economic ones, it is guaranteed that they constitute the almost primary
reason, since at the low levels that make up our society it is much more difficult to impose
the legal figure of marriage, opting for an easier way, represented by extramarital unions,
which They do not carry any legal obligation.
In relation to cultural causes, there is the lack of development in education; Because this
causes the Venezuelan with limited resources to not fully understand the importance of a
systematized family bond.

It seems imperative to delimit the border that covers the concept of the concubinary
relationship itself, that is, its personal aspect. To do this, it is essential to clarify within
which legal-institutional concepts the situation in question is located.

It is undoubtedly unquestionable that concubinage represents a merely family state, since it

basically fulfills its functions. Despite this, it only represents said circumstance and does
not constitute it as such, because it does not have a biological link between the couple or a
firm marriage sentence that can support it; Thus in this case there is the existence of an
apparent family state, based on the facts and not on the Law. So, before the community in
which they live, cohabitants develop an apparent conjugal life as husband and wife (when
the union is public and not hidden, of course), without being united by the marriage bond
granted by law.

Analyzing the topic in a more scientific and objective way;

According to Gilberto Guerrero (2008), the more uxorio or concubinary union is the stable
union between a single man and a single woman who lead a notable community of life, just
as if they were married, even when they do not comply with the formal procedures of
celebrating the marriage. , without a decisive impediment to contracting it, or to the
exercise of the capacity to live together.
Likewise, Guillermo Cabanellas (2007) says that concubinage is the relationship between a
man and his concubine (marital life with him), a state in which the man and woman find
themselves when they share a house and life as if they were spouses, but without having
contracted any kind of marriage.

Manuel Peña Bernaldo de Quiros (2008) concubinage is a de facto situation in which a man
and a woman live together stably in a conjugal manner, but without legally contracting
marriage.

Property regime in cohabitation:

Concubines are being recognized with economic benefits as a result of their union,
therefore, article 77 of the Magna Carta, considering it equated to marriage, it is logical to
think that their rights advance until they reach the patrimonial rights of marriage,
recognized promptly. in other laws, among other benefits that arise from the assets of
cohabitants: savings, insurance, taxpayer investments, and this, in the opinion of the
Constitutional Chamber, leads to whether concubinage is to be equated with marriage, by
mandate of article 77 constitutional.

The extensible marital effects cannot be limited to those specifically indicated in the cited
laws or in other regulations, but rather to everything that may make up the common
property, since much of that property is compromised by laws referred to as it is;

The Law that Regulates the Pension Subsystem (article 69-6) that grants cohabitants a
survivor's pension; The Statute Law on the Retirement and Pension Regime of Public, State
and Municipal Administration Officials grants the concubine rights to the survivor's
pension (article 16-3); The Operating Rules of the decree with Rank and Force of Law that
regulates the Housing Subsystem (articles 34) provide for cohabitants as eligible for loans
to obtain housing; The Social Security Law (article 7-a) grants the concubine the right to
comprehensive medical assistance; The Organic Labor Law (article 568) gives the
cohabitant the right to claim compensation that will be due to his deceased partner.

Elements of Concubinage:

Unity and Heterosexuality: Implies that it can only be established between a single man and
a single woman.

Consent: It is based on the agreement of wills to live together as a couple, under the same
roof, without any impediment to getting married.

Formality: There is no formality, only the agreement of the cohabitants to remain together
under the same roof, and without any of them having impediments to the marriage, in
addition it must also be proven by whoever alleges it and declared through a definitively
final sentence. Sometimes a certificate of cohabitation is issued by the civil headquarters
which is merely for the purposes of acquiring housing or to enjoy insurance benefits. It
should be noted that these are requirements requested by some organizations, and that due
to custom and use they are used. to prove the existence of a concubinary relationship, it
should be noted that the means to prove said existence for the purposes of claiming
inheritance, for example, is the aforementioned sentence.
Dissolubility: It can be dissolved by the will of the parties at any time. Whenever they
interrupt cohabitation and therefore permanence.

Cohabitation: The same cohabitants must be living in the same place and must have the
same domicile, community of life and bed. The feature that distinguishes a concubinary
union from a mere circumstantial relationship is that of cohabitation.

Permanence and stability: It must exist for a long time, at least two years. There must be
permanence between the couple, equal to or closest to union and permanence in a marriage;
the relationship between cohabitants cannot be momentary or accidental. It must be
durable. To such an extent that, lacking this modality, almost all of the effects that can be
attributed to concubinage would be inapplicable.

Singularity: This concept implies that all the elements that constitute concubinage must
occur only between the two subjects; but singularity is not destroyed by the fact that some
of said elements are between one of the concubines and another subject, to the extent that
this is possible.

Notoriety: The union of man and woman consists of a community of deed, habitation and
life, it must be susceptible to public knowledge; that is, it should not be hidden by the
subjects.

Absence of impediments to the exercise of cohabitation capacity: The lack of any

constitutive element of cohabitation does not imply, per se, the inapplicability, in certain
cases, of certain solutions. In such cases, concubinage will not fully exist; But it will be
necessary to study the specific problem that arises, to specify whether, although it is given
in another form of extramarital relationship, said problem presents the same characteristics,
bases and practical consequences as when they appear in concubinage.

For example: if cohabitation were lacking, the existence of a de facto partnership could also
be established, proving the contributions made, the will to obtain profits and distribute
profits, etc. Given all the elements of concubinage, except notoriety, the presumption of
paternity that in certain cases exists with respect to the children of the concubine would be
valid, since said presumption is based on the community of bed, habitation and life, in
conditions of singularity.

Causes of termination of concubinage:

Death: It is extinguished by the cessation of the vital signs of one of the concubines, from a
material or physical point of view. Life is consubstantial with personality and this is
extinguished by the death of the person.

Mutual agreement or unilateral decision: When both or one of the concubines shows the
desire or expresses their rejection of the concubinal relationship, with the simple agreement
to separate or even easier, with the manifestation or decision of one of the concubines, it
will be possible to extinguish the aforementioned stable de facto union.

Declaration of absence: It occurs when one of the cohabitants requests the declaration of
presumed absence after two years if the presumed absent person did not leave a power of
attorney and three years if the person who is presumed absent left a power of attorney,
therefore, according to article 448 of the Civil Code, it is declared absent to the person who
has disappeared from his or her last address or from his last residence, and of whom there is
no news.
Inheritance rights in cohabitation:

Inheritance rights arise either when a cohabitant dies, is declared absent or is presumed
dead. The problem for the surviving cohabitant is that if the person declared absent left a
surviving spouse and children or descendants, or any collateral ascendant, within the order
of succession, to whom the inheritance is deferred, he or she will have to prove his or her
status as cohabitant within the impretermitable (and concurrent) requirements established in
article 77 of the current Constitution, since otherwise it lacks legitimacy to request the
declaration of absence.

The problem for the cohabitant is greater in the case of the surviving spouse, since marriage
creates inheritance rights for the spouse of the person whose succession is in question, who
is not separated from bodies and property, whether by mutual consent, whether contentious,
unless proof, in both cases, of reconciliation, in which case the more uxorio concubine is
excluded as an intestate heir and, therefore, lacks the capacity to judicially request the
declaration of absence.

Article 77 of the National Constitution, in its second part, states that “stable de facto unions
between a man and a woman that meet the requirements established by law will produce
the same effects as marriage”; which allows us to specify that the stable de facto union will
produce relatively the same effects as marriage, as long as it meets the requirements
established in the law, among which requirements is that according to which to validly
contract a marriage it is required that one of the partners spouses are not linked to a
previous marriage.
The fact of acquiring goods during factual coexistence does not mean the impremittable
constitutional requirement of stability, since this denotes permanence, which applies to
what is not in danger of falling, decomposing, changing or disappearing; that remains
indefinitely, without conclusion or termination. When one of the cohabitants is not linked
to a previous marriage, there is no impediment for him as a survivor to enjoy the
inheritance rights of his deceased (single, married or divorced) with whom he lived, not
because his union is equated to marriage, but because Such right corresponds to him,
provided that this union has been stable and complied with the requirements of the law.

In effect, the cohabitant must prove that the union was stable, that is, "that he has lived
permanently in such a state" as provided in article 767 of the Civil Code and also that the
cohabiting union meets the requirements established in the law, since the presumption of
emerging community in cases of non-marital union, in such case, it takes effect between the
cohabitants and their respective heirs and also between one of them and the heirs of the
other; with the right to attend (when it has been declared, by means of a final final
judgment) claiming their hereditary share, and even for reasons of justice and equity with
the right to legitimacy, since the more uxorio union thus declared creates inheritance rights
for the cohabitant or the cohabitant of the person whose succession is in question, and such
rights cease with the cohabitation separation.

The cohabitant participates with the descendants whose filiation is legally proven, taking a
share equal to that of a child, and if there are no children or descendants whose filiation is
legally proven, if there are ascendants, half of the inheritance will correspond to them and
to the cohabitant or the cohabitant the other half.

In the absence of ascendants, half of the inheritance corresponds to the cohabitant and the
other half to the brothers and by right of representation to the nephews. In the absence of
these brothers and nephews, the inheritance corresponds entirely to the cohabitant, and if
this is missing, it corresponds to the expressed brothers and nephews.

In the absence of the cohabitant, ascendants, siblings and nephews, his or her other blood
collaterals will succeed him or her. In the absence of all designated intestate heirs, the
assets of the de cujus pass to the patrimony of the nation, after payment of unpaid
obligations (Articles 824, 825 and 832 of the Civil Code). Likewise, the more uxorio
cohabitant may accept the inheritance purely and simply or with the benefit of inventory
(Article 99 Civil Code). Obviously you can repudiate the inheritance expressly and
recorded in a public instrument (Article 1,012 ejusdem)

Legal bases:

This research finds its normative-legal source in article 77 of the Magna Carta, a novel
article, however the issue of concubinage, specifically in terms of post-mortem economic
benefits, is incorporated into the Venezuelan legislative body, in some laws. organic and
special laws began to consecrate and protect the rights of cohabitants, such is the case of
the following laws:

• Law that Regulates the Pension Subsystem (article 69-6).

• The Statute Law on the Retirement and Pension Regime of Public, State and Municipal
Administration Officials (article 16-3).

• The Operating Rules of the decree with Rank and Force of Law that regulates the Housing
Subsystem (article 34).

• The Social Security Law (article 7-a)

• The Organic Labor Law (article 568)

• The Statute of the Public Service.

Likewise, the peaceful and reiterated jurisprudence of the Constitutional Chamber of the
Supreme Court of Justice serves as a legal basis regarding the interpretation appeals filed in
relation to the aforementioned article of the constitution, given that the decisions emanating
from this Chamber are binding. and mandatory compliance to all Courts in the country.

Analysis of Article 77 of the Constitution of the Bolivarian Republic of Venezuela:

“Article 77. Marriage between a man and a woman is protected, which is based on free
consent and the absolute equality of the rights and duties of the spouses. Stable de facto
unions between a man and a woman that meet the requirements established by law will
produce the same effects as marriage.”

At first, it was proposed that cohabitants would have the same rights as spouses, since the
article says: “…they will produce the same effects as marriage.”

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A comment on “Concubinage (stable de facto union) in the Venezuelan Legal System”

rule

03/22/2015 from 23:22

Is concubinage regularized before the mayor's office for two days before the death of a
cohabitant legal and does all the benefits apply?

Reply

Reply
INTRODUCTION

The human being is impregnated with a device of sociability indissoluble from his own
nature, for this reason he needs the closeness of other men to find his balance and live in
harmony, this is how he has united from generation to generation, forming, from the most
primitive, like the family, to the most sophisticated, like society, a human network of
relationships that allow it to achieve comprehensive development.

The family, understood under the principles of unity and plurality, houses within it the
indisputable reality of the social coexistence of people, it is the first environment for
harmonious development and essential for the development of its members; Because it is
the oldest form of association, after which the state was born and along with history the
norms of coexistence, law as a social factor and product appears to regulate behavior and
establishes legal forms to control the actions of individuals and the State itself, an example
of this is the establishment of the figure of marriage as an institution through which a man
and a woman without legal impediments can decide to live together, under the same roof, in
order to love and procreate, formalizing their union before a State official so that such act
has public faith, therefore and ultimately forming a family, in principle, nuclear.

Now, could it be that only through marriage can a man and a woman remain together for
the same purposes (love, live together, procreate)? Is there another valid legal figure that
contemplates rights for people who assume these different forms of permanence? under the
similarity of marriage without becoming one? What effects do those validly united outside
of marriage have?
All these questions will be clarified in the present investigation, which in a simple way will
establish the existence or not of such figures other than marriage, the effects of marriage
and unions on the basis of jurisprudence, doctrine and the Venezuelan legal system. current.

MARRIAGE

CONCEPT

According to Padrón and González (1991), marriage is the legal union of a man and a
woman with the purpose of living together in perpetuity, procreating and mutual aid.

ITEMS

Unit:

It implies that it can only be contracted between a single man and a single woman.

Consent:

It is based on the agreement between the spouses to take each other as husband and wife,
which must be expressed at the time of the celebration of the act.
Perpetuity:

This is because its celebration depends on the will, which to be valid cannot be subject to
any term or condition, this indicates that if the spouses wish, they can be together for their
entire lives.

Formality

It is subject to certain legal forms: before a civil authority, prior betrothal, among others.

State intervention:

For the marriage bond to be formalized, the presence of a public official is necessary to
attest to the act so that once the couple expresses their will, he or she declares the formation
of such a bond.

Dissolubility:

Well, it can be dissolved by divorce.

Secularism
Because although the celebration of religious formalities is allowed, they can only be done
after the legal civil solemnity has been celebrated.

MARRIAGE REQUIREMENTS:

The requirements can be substantive and formal. The underlying ones refer to the very
essence of marriage and are contained in three categories:

1.- Assumptions or essential elements of marriage:

The sine quanon elements for the existence of marriage is the diversity of sex, because
although the primary purpose of this union is not procreation, it is an instinctive
consequence of all species, so for example in Venezuelan legislation marriage between
people of the same sex; consent that must be express, pure and simple, serious in which it
must be absent, error and violence and finally the presence of a competent public official.

2.- Capacity of the parts:

Which implies the legal aptitude to act. In the case of marriage, the following are taken into
consideration: the minimum age, sanity or mental health and permanent sexual potency.

3.- Absence of marital impediments:

That is, there are no legal obstacles to the exercise of marital capacity. There are decisive
and impeding impediments.

Regarding the dissolving impediments, the legal prohibitions on celebrating marriage, the
violation of which entails the absolute nullity of the marriage act, there are absolute ones
when they prohibit the celebration of marriage between the person affected by the
impediment and any other person of the opposite sex (previous link). and relative those that
prohibit the celebration of marriage between the affected person and another person
specifically (ancestors, descendants).

Regarding the impeding impediments, they are the legal obstacles to celebrating the
marriage whose violation does not entail absolute or relative nullity of the act, the
consequence that could entail would be a pecuniary sanction and sometimes no sanction at
all. These impediments can be dispensable and non-dispensable, the former allowing the
lifting or suspension of the legal prohibition to celebrate the union (prevention of marriage
between uncles and nephews).

Regarding non-dispensable items, when the legal prohibition cannot be lifted or suspended
(prevention of authorization).

EFFECTS OF MARRIAGE:

Marriage entails personal and property effects for the spouses.

The personal effects or consequence are the marital status as a personal condition because
by your will you can stop being single, to be married and you can stop being married to be
divorced. Marriage creates a bond between spouses that generates reciprocal rights and
obligations.

Therefore, according to Meléndez, (2005), the following reciprocal duties remain: Duty of
coexistence, that is, the marital domicile that is chosen by mutual agreement must be the
place of cohabitation of the spouses. There is also the duty of both spouses to contribute to
the maintenance of the home. With regard to children, parental authority is exercised by
both spouses. Furthermore, spouses have the duty to provide mutual assistance, and
marriage creates a bond of affinity with the spouses' relatives. The law provides that the
civil capacity of men and women are equal.

From the above, the rights and duties of spouses can be summarized:

Duty of fidelity

Duty of cohabitation

Choice of marital domicile

Duty of assistance, spouses owe each other help, solidarity and mutual tolerance.

Duty of protection, spouses owe each other solidarity and protection, both moral and
physical.

Contribution to household expenses (previously the expenses were paid by the man but
since the woman starts working they are compensated by taking care of the children and the
home)

Using the husband's last name is not obligatory, it is optional.

There are also consequences regarding assets, since marriage agreements can be made
previously or the community of property works, as a legal supplementary regime at the will
of the parties.

Thus, the Limited Community of Property can be defined as a type of limited community,
constituted by the shared ownership of a set of assets, which are considered common to
both spouses; such assets being the profits or benefits obtained by any of them during the
marriage; maintaining that property apart from the existence (absolutely legal and
otherwise obvious) of each husband's own property (Perez and Tesara, 2005).

STABLE DE FACT UNIONS

The constitutional norm states in article 77 that stable de facto unions will have the same
effects as marriage.

Evidently, such article does not specifically verify the characteristics of stable de facto
unions, so it is imperative to resort to the ruling of the Constitutional Chamber
___hereinafter the Chamber___ of the Supreme Court of Justice ___for the purposes of this
essay TSJ___ dated 07/15/2005 whose file is 04-331 of the Carmela Manpieri case, who
filed an appeal for interpretation. And in which the speaker was Dr. Jesús Cabrera.

Thus, concubinage is a kind of stable de facto union.

CONCEPT
The stable de facto union is cohabitation or life in common, an element that can be replaced
by coexistence in constant visits, mutual help, repeated economic help, joint social life, and
children, between a man and a woman, without impediments to contract marriage, such
union will be of a permanent nature (minimum two years), and that the couple is single,
formed by divorced or widowed people among themselves or with single people, without
there being any decisive impediments that prevent the marriage. And to claim possible civil
effects of marriage, it is necessary that a definitive judgment recognizes it, the relationship
being exclusive of others with the same characteristics. This is what the TSJ Chamber
expresses.

ITEMS:

Unit:

Well, like marriage, it implies that there can only be a union between a single man and a
single woman, to be considered valid.

Consent:

It is based on the agreement between those united to take each other as a couple, among
themselves and before others, with coexistence under the same roof not being necessary.

Perpetuity:
The union also implies permanence over time and must be at least two years.

Formality

It is not subject to legal forms, only that whoever alleges it must prove it and it must be
declared or recognized for it to take effect, through a definitively final sentence.

Dissolubility:

Well, it can be dissolved by the agreement of wills and if any of the parties wish to claim
assets, the start date of the relationship and the date of its termination must be established in
the sentence.

CONCUBINAGE

CONCEPT

It is a non-marital union between a single man and a woman, which is marked by the
permanence of life together, being single a decisive element in the qualification of
concubinage, as can be seen from article 767 of the Civil Code and 7 , letter a) of the Social
Security Law, as stated by the TSJ in said ruling. Hence the difference between stable de
facto unions and concubinage, cohabitation under the same roof, since all concubinages are
stable de facto unions, but not all stable de facto unions are concubinage, in accordance
with the ruling in comment.
Within this context, Pérez and Tesara (2005) define concubinage as the de facto situation in
which two people of different sexes find themselves living together without being united in
marriage and without there being impediments to contracting it. It is, therefore, a de facto
union with characteristics of stability and permanence; Both short-term transitory unions
and stable sexual relations but not accompanied by cohabitation are undoubtedly excluded
from its concept.

ITEMS:

Unit:

It implies that it can only be established between a single man and a single woman.

Consent:

It is based on the agreement of wills to live together as a couple, under the same roof,
without any impediment to getting married.

Perpetuity:

It must exist for a long time, at least two years.

Formality

There is no formality, only the agreement of the cohabitants to remain together under the
same roof, and without any of them having impediments to the marriage, in addition, it
must also be proven by whoever alleges it and declared through a definitively final
sentence. Sometimes a certificate of cohabitation is issued by the civil headquarters which
is merely for the purposes of acquiring housing or to enjoy insurance benefits. It should be
noted that these are requirements requested by some organizations, and that due to custom
and use they are used. to prove the existence of a concubinary relationship, it should be
noted that the means to prove said existence for the purposes of claiming inheritance, for
example, is the aforementioned sentence.

Dissolubility:

It can be dissolved by the will of the parties at any time. Whenever they interrupt
cohabitation and therefore permanence.

Given all the above considerations, a comparative table of the effects of marriage and stable
de facto unions is prepared, understanding within this concubinage as a species, which in
the terms of the CRBV, are comparable and that emerge from the interpretation that the TSJ
made of article 77 of the Magna Carta.

MARRIAGE

STABLE DE FACT UNIONS

Personal effects:

There are duties between spouses: fidelity, living together and mutual help. Optional use of
the husband's last name.

Personal effects:

There are no duties between those united: life together is verified because it is a serious and
integrated relationship, that it is in the presence of a couple.

However, the duty of mutual aid does subsist.

You cannot use the last name of the cohabitant or partner, since the condition of cohabitant
or partner does not modify the marital status, therefore it cannot alter the identity of the
person.

Termination of the relationship:

Due to divorce or death. Consequently, he is called an ex-spouse.

Termination of the relationship:

due to death or repudiation of the relationship by any of the components, rupture of the
continuity of the relationship (because one marries another person). Consequently, if he
were a cohabitant, he would be called an ex-concubine.

Patrimonial regime:

Marital capitulations, or limited community of property.

There is a survivor's pension, they have the right to comprehensive medical assistance, they
have the right to claim compensation that corresponds to their deceased partner, they can
request loans to obtain housing.

Such a community is dissolved with divorce or in the request for separation of bodies the
separation of property is also specified.

The wife inherits and concurs with the other heirs according to the order of succession
indicated in the Civil Code (articles 824 and 825) in matters of succession without a will, in
accordance with article 807 of the Civil Code.

Sales between spouses are void.

Patrimonial regime:
These are economic benefits that arise from the assets of the cohabitants: savings,
insurance, taxpayer investments, everything that refers to the common assets.
Consequently, for cohabitants there is a survivor's pension, they are entitled to
comprehensive medical assistance, they have the right to claim compensation that
corresponds to their deceased partner, and they are eligible for loans to obtain housing.

Its dissolution is done by death or deed, a case in which it must be alleged and proven by
whoever seeks the dissolution and liquidation of the community.

There are inheritance rights between the unions in accordance with the provisions of article
823 of the Civil Code, provided that the death of one of them occurs during the existence of
the union. Once it has ceased, the situation is the same as that of separated or divorced
spouses. Furthermore, he or she participates with the other heirs according to the order of
succession indicated in the Civil Code (articles 824 and 825) in matters of intestate
succession, in accordance with article 807 of the Civil Code, and his legitimate rights must
be respected (article 883 of the Civil Code). if there is a will. Likewise, the causes of
unworthiness that exist between cohabitants will be applied in accordance with article 810
of the Civil Code. This is what the Judgment in comment expresses. The same happens in
the case of absence, you can request alimony.

Sales between the united are null.

CONCLUSION

Based on the reality of human relationships, the law, which is a social phenomenon acting
as a factor, because it affects behaviors and regulates them, and as a social product, because
it emerges from the needs of the collective, is how it regulates the unions that differ from
the marriage shelter families under their wings, understanding that the main purpose is the
protection of children and adolescents and in honor of many people who, because they did
not meet the formal requirements of marriage, were excluded from many social, legal and
economic benefits, this is how Finally, through the constitution and jurisprudence, the
effects of marriage are similar, as far as possible, to stable de facto unions, including
concubinage.

From the above, the importance of the fact that the legislator responds to the demands of
social coexistence is evident, since society, being a changing agent, modifies behaviors,
which should generate, as it does, the transformation. legislative and what is more
important the paradigmatic change of cultural and social consciousness.

It should be noted, according to the assessment of the author of the research, that with the
assimilation of all unions to marriage, the marriage institution is definitely the model par
excellence of union between a man and a woman and that has arrived with its evolution to
be celebrated more than for economic and cultural reasons, for reasons of love and feeling
between the couple.
CONCUBINATE II (Dissolution of Concubinage.)

Dissolution of Concubinage.

Due to the large number of questions, due to the doubts that this topic generates, I have
decided to make a more detailed explanation of it, to provide you with more information.

1. Should the Dissolution of the Concubinage be carried out before the same Office where I
made the declaration of union?

The declaration of wanting to dissolve the Concubinage or Stable Union, in fact, is not
necessary to make in the same Registry Office where the declaration of wanting to unite
with the other person was made in principle.
If you are in another city, you can carry out the dissolution where you are, and the office
where you state that you do not want to continue in concubinage will be sent to the office
where the union was initially made.

2. If my Ex-partner does not want to dissolve the Stable De facto Union, can I carry out the
dissolution alone?

If it can be carried out and it is what is called the "UNILATERAL MANIFESTATION" of

dissolving the Cohabitation, this demonstration must be made in the last place of residence
of the couple, the person making the demonstration must indicate the address of the other
person so that this is notified.

This notification will be made within the following 5 business days, and if it is not possible
to locate it, a notification will then be made by posters.

3. If I am with another person and I joined in common law, what do I do?

If you are no longer with the person who joined in concubinage and want to marry or join
in concubinage with another person, what you have to do is make the declaration of
dissolution of the concubinage, the Registrar will issue you a document that certifies the
dissolution of the concubinage. and may at that time join in concubinage with another
person or marry.

4. Is it necessary for the other person to sign the Declaration of Dissolution?

It can be a Unilateral Manifestation, that is, without the other person signing, you take the
manifestation to the Registry and they will be in charge of notifying the other person to sign
the dissolution.

5. In the event that the Dissolution is by Judicial Decision?

In this case, it will be the Court that sends the definitively final Judgment to the
corresponding Registry for its insertion in the Book and the placement of the corresponding
marginal note.

MODEL OF UNILATERAL MANIFESTATION OF DISSOLUTION OF

CONCUBINATE.

CITIZEN:

NOTARY PUBLIC OR PUBLIC REGISTER.

HIS OFFICE.-

I,...Venezuelan, single, respectively, of legal age, skilled in law, of this address, and holder
of the identity card V.-..., respectively, based on Ord. 1 of Article 122 of the Organic Law
of the Civil Registry, for the purposes of MANIFESTING MY DECISION TO DISSOLVE
THE STABLE DE FACT UNION that I maintained with the Citizen... since the day... (...)
September of one thousand nine hundred and ninety... (19...) I hereby declare that:

FIRST: We have not resided together since the date... motivated to...

SECOND: Our last place of residence was....

THIRD: From this stable de facto union we procreate a daughter named..., born in this city
of Caracas, on December 6 (18), two thousand and one (2001), currently nine (09) years
old. .

FOURTH: I request that once this application has been submitted, the originals with their
results be returned to me as soon as possible. In Caracas, on the twenty-ninth (29th) day of
November, two thousand eleven (2011).
Spouses (Both spouses)

According to the Civil Code, marriage can only be contracted between one man and one
woman.

The law does not recognize any other marriage in Venezuela except the one established in
our legislation.

With marriage, the husband and wife acquire the same rights and assume the same duties.

From marriage derives the obligation of spouses to live together, remain faithful and help
each other.
A married woman may use her husband's surname.

This right subsists even after the dissolution of the marriage due to death as long as a new
marriage is not contracted.

Regarding the community of property, between husband and wife if there is no agreement
to the contrary, the gains or benefits obtained during the marriage are common, in half.

Therefore, this community of marital property begins precisely on the day of the
celebration of the marriage, any contrary stipulation will be void.

That is, the division of assets is NOT permitted privately between spouses.

Some spouses make the unnecessary mistake of forcing the other spouse, under any duress,
to register the separation of property by a Notary Public.

Such procedure is null and void, since such a decision only corresponds to the Courts of
Mediation, Substantiation of Children and Adolescents, when there are minors, by the
Municipal Courts and by the Courts of First Instance depending on the amount.

This can only be done through the Court with jurisdiction in the matter, when proceeding
with the separation of assets and the dissolution of the marriage bond.
With the divorce request under article 185-A, you should NOT request the separation of
property as the law prohibits it.

It only proceeds once the divorce decree is enforceable.

Likewise, the Civil Code establishes that there can be NO sales of property between
husband and wife. Which means that this sale is void.

But there are marriage agreements where it must be registered by authentic document in the
Public Registry, in the jurisdiction of the place where the marriage is celebrated, before the
celebration of the marriage, under penalty of annulment.

This means that the assets of the spouses will belong to each of them and in the event of
divorce, those assets will continue to belong to each of the former spouses.

It is important to state that while marriage exists, for spouses there is no stable de facto
union or concubinage with another person, since these legal figures are in contrast to what
is established in the Civil Code.

In this sense, if at a certain time one of the spouses has a mistress and gives her a car or an
apartment and those funds correspond to the community of property of both spouses, the
other spouse can recover such property through legal actions that may be available.
exercise.
But if this gift comes from a donation that has been given to the spouse before getting
married, that comes from a treasure or a lottery that has been given to them by their parents,
siblings, friends or that it is from their money in the bank account, registered In marriage
agreements, the other spouse cannot legally claim anything from the mistress.

Also if one of the spouses gives an apartment to a lover, but it is the product of the sale of
their properties that they registered through marriage agreements, that apartment will
belong to the lover and the spouse will NOT be able to exercise any legal action.

This will only help the other spouse to take legal action for a divorce.

In this sense, marriage agreements must only be celebrated BEFORE the marriage, so when
a marriage is contracted without having perfected the marriage agreements, they cannot be
celebrated and this situation will bring with it the application of the supplementary regime.

This means that the limited community of property will apply.

Lover

It is the adulterous woman.

In a malicious or adulterous sense.

Arraganada, barragana, entertained, maintained, young, protected, loving, dear,

rummaging.
The mistress are those people who are the product of passionate impulses that lead to
extramarital relationships.

Concubine

Concubinage, permanent union between people of different sexes, who do not intend to
consider themselves as husband and wife due to lack of marital affection.

During the classical period, these unions were tolerated by law and escaped the sanction of
Augustus for illegitimate unions and were frequent due to the different categories of
senators and libertines, provincial governors.

In postclassical law they are widely regulated, and Justinian distinguishes the children of
concubinage from the common concept, being able to be legitimized and an honest woman
can be a concubine.

Guillermo Cabanellas points out that the concubine is that woman who, without having
contracted a legitimate marriage with the man, lives and cohabits with him as if he were her
husband and exemplifies this with the barragana.

It is the state in which a man and a woman find themselves when they share a house and
life as if they were spouses, but without having married.
In Roman and Canon Law of the first centuries, concubinage was a true marriage, but
contracted with a woman of lower social class or of dubious morality.

Perhaps because formalities were suppressed in unions that were socially frowned upon, the
relationship evolved to its current exclusive meaning.

Marriage and free union.

Widespread in certain social strata, concubinage tries to vindicate itself even in terms of
language and today very frequently adopts the label of free union, and there are even
attempts to equate it with legitimate marriage.

Giving concubinage the same category as marriage in relation to people with the capacity to
contract legitimate marriages would mean nothing less and nothing more than the
destruction of the principle on which the union is based.

The mutual assistance and defense of spouses who marry, against the spontaneous
constancy that partners or lovers provide at their initiation

The Civil Code states that community is presumed, unless proven otherwise in those cases
of non-marital union, when the woman or man demonstrates that they have lived
permanently in such a state even though the assets whose community is to be established
appear in the name of just one of them.
Such presumption only arises legal effects between the two of them and between their
respective heirs of the other.

The provisions of this article DO NOT apply if one of them is married.

This legal rule has the peculiarity that the woman does NOT have to prove anything that
she contributed to the increase of the man's assets.

In concubinage according to this legal norm, what the legal norm indicates does not apply,
but if the woman demonstrates that she contributed to the increase of the man's assets, she
would receive a share.

This must be done through a mere declaratory action before the Court competent for the
matter.

In this sense, the Code of Civil Procedure states that to propose the claim the plaintiff must
have a current legal interest.

However, the claim for mere declaration is not admissible when the plaintiff proves that he
has obtained the complete satisfaction of his interests through a different action.

The Civil Cassation Chamber of the Highest Court of the Republic states that its purpose is
to declare the existence or not of a right, or a legal situation or the true scope of a certain
legal relationship.
Stable de facto unions

The Constitution of the Bolivarian Republic of Venezuela indicates that stable unions
between a man and a woman that meet the requirements established by law will produce
the same effects as marriage.

In a ruling of July 2005, the Constitutional Chamber of the Supreme Court of Justice stated
that the stable union between a man and a woman is expressed in that way and NOT as
concubinage.

In this sense, the Constitutional Chamber states that concubinage is a factual situation that
requires judicial declaration and that is qualified by the Judge, taking into account the
conditions of what should be understood by a common life.

The Civil Code recognizes other legal effects of concubinage, such as the existence of the
presumption of pater istest for children born during its validity.

Therefore, currently the concubinage that can be declared is one that meets the
requirements of the Civil Code and this becomes one of the forms of stable unions
contemplated in article 77 of the Magna Carta.

In this sense, the Constitutional Chamber of the Supreme Court of Justice states that
concubinage is par excellence the stable union manifested in our Constitution.
The stable de facto union between a man and a woman represents a broad concept that will
produce legal effects.

Regardless of the economic contribution of each of them, what is relevant for the
determination of the stable union is cohabitation or life in common, with a permanence
nature, and that the couple is single, formed by divorcees or widowers with each other or
with single, without any decisive impediments preventing marriage

According to the Constitutional Chamber, the ruling declaring concubinage must indicate
the date of its beginning and its end, if applicable, and also recognize the duration of the
union, when it has been broken and then rebuilt, computing for the final determination the
time elapsed since its beginning.

Therefore, stable de facto unions, including concubinage, are not necessarily similar to
marriage and although living together, such as a home, is an indicator of their existence.

But it can be ignored as long as the permanent relationship translates into other forms of
coexistence, such as constant visits, mutual help, repeated economic help, joint social life,
children, among others.

It is important to note that the Supreme Court of Justice indicates that the duration of the
union, that is, the stable union and cohabitation, is at least two years minimum, which may
help the Judge in qualifying permanence.
In the opinion of the Constitutional Chamber, just as there is no duty to live together, there
cannot be a duty of fidelity either, so the violation of duties such as fidelity or life together
does not produce legal effects.

The union being broken by the repudiation of it by any of the components, which occurs
because one of them marries another person or for any other reason, the continuity of the
relationship is broken.

The division of assets is widely analyzed in the articles corresponding to capital gains, 7 in
total, in the first of them I explain that what was received by inheritance does NOT fall
within this community nor objects for personal use.

Therefore, there will be abundant material on the subject.

Likewise, there are other articles related to the topic that are published on this blog.

I always respond to concerns, write them below in the comments section

This text made public on January 30, 2018 refers to the laws in force on that date. If you are
reading this writing, it is because they are still in force. If the laws in this regard change at
some point, I will modify the text to put it up to date. day with the new legal system
STABLE FACTUAL UNIONS OR CONCUBINATE: JUDGMENT THAT INTERPRETS
THE ART. 77 OF THE NATIONAL CONSTITUTION ON THE SCOPE OF ITS
EQUATION WITH CIVIL MARRIAGE (CONSTITUTIONAL CHAMBER)
It is up to this Chamber to decide the substance of the present interpretation of article 77 of
the Constitution, for which it is observed:

Article 77 of the Constitution reads “Stable unions between a man and a woman that meet
the requirements established by law will produce the same effects as marriage.”

It is interesting for the Chamber to highlight that said norm uses the word “stable union”
between the man and the woman, and not the term “concubine or concubine” used in article
49.5 eiusdem; and this is so because a stable union is the genus, as can be seen from article
146 of the Organic Tax Code, or from article 13-5 of the Insurance and Reinsurance
Companies Law, or from article 785 of the Savings Banks Law and Savings Funds, with
concubinage being one of its species.

Concubinage is a legal concept, contemplated in article 767 of the Civil Code, and its
characteristic - which emanates from the Civil Code itself - is that it is a non-marital union
(in the sense that the legal formalities have not been completed. of marriage) between a
single man and a woman, which is marked by the permanence of life together (singleness
becomes a decisive element in the qualification of concubinage, as can be seen from article
767 of the Civil Code and 7 , letter a) of the Social Security Law).

This is a factual situation that requires a judicial declaration and is qualified by the judge,
taking into account the conditions of what should be understood by a life together.

In addition to the rights over the common property that are born during that union (article
767 eiusdem), article 211 of the Civil Code, among others, recognizes other legal effects of
concubinage, such as the existence of the presumption pater ist est for children born during
its validity.

Given the above, for the Chamber it is clear that currently the concubinage that can be
declared such is that which meets the requirements of article 767 of the Civil Code, and it
becomes one of the forms of stable unions contemplated in the constitutional article, since
that meets the requirements established by law (Civil Code), to be recognized as such a
union. For now – for the purposes of the aforementioned article 77 – concubinage is par
excellence the stable union indicated there, and it is declared as such.

The above does not mean that the law cannot classify other types of relationships between
men and women as stable unions for the purposes of article 77 of the Constitution, taking
into account the permanence and notoriety of the relationship, cohabitation, etc. and,
therefore, the Draft Organic Law for the Protection of the Family, Maternity and Paternity,
discussed in the National Assembly, in articles 40 to 49, develops stable de facto unions, as
a figure of its own while concubinage As a figure different from the previous one, it was
developed in articles 50 to 53.

“Stable de facto union between a man and a woman” represents a broad concept that will
produce legal effects, regardless of the economic contribution of each of the partners in the
increase or formation of the common heritage or that of one of them. , being what is
relevant for the determination of the stable union, cohabitation or life in common, with a
permanence nature, and that the couple is single, formed by divorced or widowed people
among themselves or with single people, without there being any decisive impediments that
prevent the marriage.

But since, unlike the marriage that is perfected through the marriage act, included in the
marriage certificate, there is no certain date of when the stable union begins, it must be
alleged by whoever has an interest in having it declared (party or third party). ) and proven
its characteristics, such as permanence or stability over time, the external signs of the
existence of the union (which is similar to the proof of possession of status in terms of fame
and treatment, since the condition of the couple as such, must be recognized by the social
group where it operates), as well as the need for the relationship to be exclusive of another
with the same characteristics, due to the condition of stability. If the stable union is equated
to marriage, and bigamy is prohibited, in the opinion of this Chamber it is impossible, for it
to produce legal effects, the coexistence of several relationships at the same time on the
same level, unless the Law expressly states exceptions. Now, according to article 77 of the
Constitution, the regulation of other stable unions other than concubinage corresponds to
the legal reserve and, therefore, the Chamber is prohibited, even through regulatory
jurisdiction, from classifying these. other unions, and so it is declared.

Having noted the above, the Chamber must point out which of the effects of marriage are
applicable to “stable de facto unions between a man and a woman,” in accordance with the
petitioner's request, and it is necessary to point out that although concubinage is a type of
union stable, because it is the figure regulated in the Law, the Court will refer to it
interchangeably as “stable union” or concubinage, but recognizing that within the concept
of stable union there may be types other than concubinage. In order to cover both types of
unions, and therefore gender, the Chamber will use the term stable union in this ruling to
refer to all possibilities, including concubinage.

Firstly, the Chamber considers that, to claim the possible civil effects of marriage, it is
necessary that the “stable union” has been declared in accordance with the law, which is
why a definitively final ruling is required that recognizes it.

Currently, a judicial declaration of the stable union or concubinage is necessary; dictated in

a process for that purpose; which contains the duration of the same, which facilitates, in the
case of concubinage, the application of article 211 of the Civil Code, since the conception
of a child during its existence, makes it presume that the cohabitant is the father of the child
or daughter, so the declaration of concubinage must indicate the date of its beginning and
its end, if applicable; and recognize, likewise, the duration of the union, when it has been
broken and then reconstituted, computing for the final determination, the time elapsed from
the date of its beginning.

Now, marriage – due to its formal nature – is an institution that is born and tested in a
different way than concubinage or any other stable union, and therefore the latter cannot be
fully equated to marriage and, therefore, it cannot be claimed that Automatically, all the
effects of marriage apply to “stable unions.”

Consequently, a general declaration that assimilates unions (of any type) to marriage is not
possible, and therefore, the Chamber observes, it is necessary to distinguish which effects
of marriage apply to concubinage and possible other stable unions.
These unions (including concubinage) are not necessarily similar to marriage, and although
life in common (with a common home) is an indicator of their existence, as can be seen
from article 70 of the Civil Code, this element can always be ignored. that the permanent
relationship translates into other forms of coexistence, such as constant visits, mutual help,
repeated economic help, joint social life, children, etc.

Following indicators that arise from the laws themselves, the duration of the union, at least
two years minimum, may help the judge to qualify the permanence, since that was the term
contemplated by article 33 of the Law of the Union. Social Security, by regulating the right
of the common-law wife to the survivor's pension.

Due to the above, the Chamber moves on to examine the effects of marriage applicable to
stable unions and concubinage, and it considers that the duties that article 137 of the Civil
Code imposes on spouses and whose violation becomes grounds for divorce ( see in article
185 of the Civil Code the 1st and 2nd ordinals), they do not exist in concubinage or in other
unions.

Stable union does not necessarily mean under the same roof (although this is a symbol of
it), but permanence in a relationship, characterized by acts that, objectively, make people
(third parties) presume that they are dealing with a couple, that They act with the
appearance of a marriage or, at least, of a serious and close relationship, which constitutes
life together.

It is a permanent relationship between a man and a woman, and not one between a man and
several women (even if all of them are on the same level) and vice versa.

In the opinion of the Chamber, just as there is no duty to live together, there cannot be the
duty of fidelity contemplated in article 137 of the Civil Code, so the violation of duties such
as fidelity or life together (article 137 cited) do not produce legal effects, the “union” being
broken by the repudiation of it by any of the components, which is given because one of
them contracts a marriage with another person, or because, for any reason, continuity was
broken of the relationship. Once the relationship is extinguished, the law, at least in
cohabitation, recognizes the condition of ex-concubine as does article 42 of the Law on
Violence against Women and the Family.
Regarding the duty to help each other, contemplated for spouses in article 137 of the Civil
Code, the Chamber considers that this does exist in any type of union, since if legally
unions (or at least concubinage) generate rights - such as alimony - which normally
correspond to the spouses for the duration of the marriage, the components of these de facto
unions must also have these rights, as explained later, and this corresponds to the
aforementioned duty of mutual aid.

Article 173 of the Civil Code also grants a woman's optional right to use her husband's
surname.

In the opinion of this Chamber, the use of surnames other than one's own, such as that of
the husband's for the woman, is a right that arises only from the marriage act, which entails
adding something to her identity, and which is supported by the marriage certificate that
reflects a new marital status.

The civil status of natural persons is formed by births and marriages, and necessarily by the
changes it undergoes (divorce, for example), which are noted outside the civil status items.

For the Court, the fact that a stable union in general produces the same effects as marriage
does not mean – it is repeated – that it becomes a marriage, but rather that it is equated to it;
that is, as far as possible. However, the legal condition of the stable union, in principle,
does not allow the woman to use her husband's surname.

The civil status arises from formal expressions of will contained in the minutes of the civil
status, as well as from the transformations that it receives and that appear in the marginal
notes of the items.

This is a formal issue that not only allows us to know the condition of the person, but is
also the cornerstone of the identification system.

There is, at this time and for this date, no record of the civil status of concubinage, or other
type of union, that grants the status of common-law or union and, therefore, the symbols
that represent the civil status, such as the use of the surname of the husband by the wife; In
the opinion of the Chamber, it cannot be used by those who have not married.
Now, when equated to marriage, the “stable union” genre must have, like it, a property
regime, and in accordance with article 767 of the Civil Code, corresponding to concubinage
but currently applicable by analogy to de facto unions. , this is that of the community in the
assets acquired during the time of existence of the union. It is a community of property that
is governed, due to the equality, which is possible in this matter, by the rules of the
property-matrimonial regime.

Various laws of the Republic grant cohabitants property and social rights in different areas
of life, and this, in the opinion of the Chamber, is an indicator that cohabitants are being
recognized with economic benefits as a result of their union, therefore that, in article 77
eiusdem, by considering them equated to marriage, it is logical to think that their rights
advance until they reach the patrimonial rights of marriage, specifically recognized in other
laws.

The Law Regulating the Pension Subsystem (article 69-6) grants cohabitants a survivor's
pension; The Statute Law on the Retirement and Pension Regime of Officials of the State
and Municipal Public Administration grants the concubine rights to the survivor's pension
(article 16-3); The Operating Rules of the Decree with the Rank and Force of Law on
Long-Term Mortgage Loans (article 130), as well as the Operating Rules of the Decree
with the Rank and Force of Law Regulating the Housing Subsystem (article 34) provide for
cohabitation as eligible for loans to obtain housing; The Social Security Law (article 7-a)
grants the concubine the right to comprehensive medical care; The Organic Labor Law
(article 568) gives the partner the right to claim the compensation that will correspond to
his deceased partner, and the same right is granted by the Public Service Statute (article
31).

These are economic benefits that arise from the assets of the cohabitants: savings,
insurance, taxpayer investments (article 104 of the Income Tax Law recognizes this), etc.,
and this, in the opinion of the Chamber, leads to If concubinage is to be equated with
marriage, by mandate of article 77 of the Constitution, the extensible marital effects cannot
be limited to those specifically indicated in the cited laws or in other regulations, but rather
to everything that may make up the common property, since Much of that heritage is
compromised by the aforementioned laws.
Such community of property, unlike divorce which requires a judicial declaration, ends
when the union is broken, which - except due to death - is a question of fact that must be
alleged and proven by the person seeking the dissolution and liquidation of the community.
community. In the opinion of the Chamber, and as a natural result of such situation,
whoever demands the dissolution and liquidation of the community, may ask the judge to
issue the rulings of article 174 of the Civil Code, in the case contemplated therein.

Now, since there is no action for separation of bodies from concubinage and even less one
for divorce, since the breakdown of the union is a de facto situation that can occur at any
time unilaterally, articles 191 and 192 of the Civil Code They are inapplicable, and so it is
declared; However, in the processes aimed at recognizing concubinage or stable union, the
necessary preventive measures may be dictated for the preservation of children and
common property.

When article 77 of the Constitution appears, profound changes arise in the concubinary
regime of article 767 of the Civil Code, since there is a stable or permanent union, there is
no need to legally presume any community, since it exists by law - if there are assets - with
respect to what was acquired, just as in marriage, during the time that the union lasted and,
as a community, it is not that it has legal effects between the two of them and between their
respective heirs, or between one of them and the heirs of the other, as contemplated in
article 767 of the Civil Code, but, like the assets referred to in article 168 of the Civil Code,
third parties who have debts against the community may collect from the common assets,
as This norm guides it.

To this end, if the stable union or concubinage has not been declared judicially, third parties
may have an interest that is recognized by judgment, in order to collect their debts from the
common property. To do this, they will have to allege and prove the community, suing both
concubines or their heirs.

Since there are no publicity mechanisms that communicate the existence of concubinage,
nor that record the sentences that declare it, for third parties with an interest in the common
property, it is - most of the time - impossible to know in advance the existence of the
concubinage and what those are. common goods; which is why the Chamber considers that
requiring the application of article 168 of the Civil Code would be contrary to the principle
that no one can be asked the impossible, since not knowing the existence of concubinage,
nor are the cohabitants obliged to declare such a condition, In lawsuits involving common
property, it will be sufficient to sue the person who appears to be the owner of the same,
and the latter may also legitimately bring actions against third parties related to the
common property, unless the ownership of them is documented in favor of both. .

Now, once the concubinage has been judicially declared, any of the cohabitants, in defense
of their interests, may initiate the action provided for in article 171 of the Civil Code for the
benefit of the common property and obtain the preservation of the same through the
measures decreed by the judge.

It is important for this interpretation to clarify whether it is possible that between

concubines or united persons, there is a property regime different from that of the
community of property, such as that provided for in the Civil Code on matters of marriage
contracts.

In the opinion of this Chamber, this is impossible, because the essence of concubinage or
stable union is not given – as in marriage – by a document that creates the bond, such as the
marriage certificate, but by the permanent union. (stable) between the man and the woman,
which requires a passage of time (which the judge will weigh), which is what qualifies the
stability of the union; and this being so, a priori there cannot be a registered declaration of
the constituent parties of the union, in the sense of how they will manage the assets
obtained during it.

Likewise, the Chamber has to examine the possibility for one of the members of a union or
concubinage, of the existence of putative concubinage, which arises when one of them, in
good faith, is unaware of the married status of the other. In the opinion of this Chamber, in
these cases the rules on putative marriage, applicable to property, will apply to the
concubine in good faith.

As a result of the equation recognized in article 77 of the Constitution, regarding the effects
and scope of the stable union (concubinage) with marriage, the Chamber interprets that
among the subjects that comprise it, who occupy ranks similar to those of the spouses ,
there are inheritance rights in accordance with the provisions of article 823 of the Civil
Code, provided that the death of one of them occurs during the existence of the union. Once
it has ceased, the situation is the same as that of separated or divorced spouses.

Since each member of the union is recognized with succession rights in relation to the
other, the survivor or survivor, when occupying the position of a spouse, concurs with the
other heirs according to the order of succession indicated in the Civil Code (articles 824
and 825) in matter of intestate succession, in accordance with article 807 of the Civil Code,
and his legitimate right must be respected (article 883 of the Civil Code) if there is a will.
Likewise, the causes of unworthiness that exist between cohabitants will be applied in
accordance with article 810 of the Civil Code.

Now, equating cohabitants or those united with spouses in the compatibility between these
figures and marriage, the Court considers that as long as the union exists, each one may
demand maintenance from the other participant, unless he or she lacks resources or assets
of his or her own. to supply them, in which case they may be required from the persons
indicated in article 285 of the Civil Code.

Likewise, in the event of a declaration of absence of one of the members of the union, the
other may obtain alimony in accordance with article 427 of the Civil Code.

In cases in which succession or maintenance actions are initiated, or against third parties,
without a prior judicial declaration of the existence of concubinage or stable union, the
lawsuit will require that these be declared previously, so it must be alleged and prove such
condition.

Due to the effects and scope indicated, the sentence declaring the union will have the
effects of the sentences referred to in ordinal 2 of article 507 of the Civil Code, which will
be applied in its entirety, except in relation to the need to register the sentence, which is not
provided for – and therefore lacks a procedure – in the Law.

This absence of registration and, therefore, of publicity, which can keep the cohabitation
hidden from third parties, raises the question of whether the sale between cohabitants is
void, as established in article 1481 with respect to spouses.
In the opinion of this Chamber, given the effects recognized by the “stable union”, it would
be a source of fraud for the creditors of any of the cohabitants, to accept that one would sell
to the other the common property documented in his name or owned by him. and,
consequently, whoever proves that the sale has occurred between them, can invoke the
existence of the union and treat them as common property or, as the case may be, request
the annulment of the deal.

The Court must note that the only concubinage that produces effects comparable to
marriage is the one outlined in this ruling; and such a limitation is made because some laws
call a concubine a woman who lives with a man even though he is prevented from marrying
her, when in reality such concubinage is contrary to article 767 of the Civil Code and what
this ruling conceptualizes.

The misuse of the word concubine, in the sense immediately indicated, appears in articles
397 and 399 of the Penal Code, and is declared as such.

The Chamber also notes that various laws in force, such as the Organic Tax Code (article
146-4), the Law on Insurance and Reinsurance Companies (articles 13-5 and 21), the Law
on Savings Banks and Savings Funds ( articles 78-5 and 136), point out impediments to
accessing positions for those who maintain stable de facto unions. Likewise, articles 56 of
the Law of the Scientific, Criminal and Criminalistic Investigation Corps, and 71 of the
Insurance Contract Law, refer to these.

Now, since the law has not yet determined who is considered to live in a stable de facto
union, such mention, in all cases, in the opinion of this Chamber, must currently be
understood to apply equally to cohabitants, since that in specific relation to them, there are
prohibitions in article 20 of the Mining Law.

Lastly, and as a result of what has been interpreted, is that when in a specific legal
relationship, one of the parties acts in their capacity as a cohabitant, for the purposes of that
relationship the existence of the concubinage is recognized by the parties and,
consequently, between the parties to the relationship or business, one of them will be
deemed to be linked to concubinage.
In the terms set forth, the requested interpretation is resolved, and given its binding nature,
in accordance with the provisions of Article 335 of the Constitution, the publication of this
ruling in the Official Gazette of the Republic is ordered, without prejudice to Since the
Constitution of the Bolivarian Republic of Venezuela came into force, the rights of
cohabitants have been constitutionally recognized. This is how it is decided.

Likewise, the interpretation made in this ruling is without prejudice to the rights of
indigenous peoples and communities, in terms of their social organization, uses and
customs, recognized in article 119 of the Constitution.

DECISION

For the reasons stated above, this Constitutional Chamber of the Supreme Court of Justice,
administering justice in the name of the Republic and by authority of the Law, declares
RESOLVED the request for interpretation of article 77 of the Constitution in the terms
expressed in the motivational part hereof. failed.

Given its binding nature, the publication of this ruling in the Official Gazette of the
Republic is ordered, and it is from said publication that this ruling will begin to take effect.

Publish and register. Comply with what is ordered. File the file.

Given, signed and sealed in the Hearing Room of the Constitutional Chamber of the
Supreme Court of Justice, in Caracas, on the 15th day of July, two thousand five (2005).
Years: 195th of Independence and 146th of the Federation.

The President of the Chamber,

Luisa Estella Morales Lamuño

The Vice President-Rapporteur,

Jesus Eduardo Cabrera Romero

The Magistrates,

Pedro Rafael Rondón Haaz

Luis Velazquez Alvaray

Francisco Carrasquero López

Marcos Tulio Dugarte Padrón

Arcadio Delgado Rosales

The Secretary,

José Leonardo Requena Cabello

04-3301

JECR/
http://historico.tsj.gob.ve/decisiones/scc/junio/188624-RC.000405-29616-2016-16-
098.HTML

Chamber: Social Cassation

Type of Appeal: Cassation

Sentence No. 438 Date: 05-29-2017

Case: Partition by mutual agreement filed by DEISY LLANIRE RODRÍGUEZ

MERCADO and RONDER JAMES MUÑOZ SOSA
Decision: The appeal against the sentence handed down on January 26, 2015, by the
Superior Court for the Protection of Children and Adolescents of the Judicial District of the
state of Aragua is declared admissible and the partition agreement is approved.

Extract:

"However, the entry into force of the Organic Law of Civil Registry published in the
Official Gazette of the Bolivarian Republic of Venezuela No. 39,264 on September 15,
2009, whose validity began on March 15, 2010, meant the possibility to register stable de
facto unions, as well as their dissolution, partially satisfying the assumptions that may
occur, such as, the voluntary manifestation of the interested parties of the initiation and
termination of the stable union, which they must make before the competent authority, for
Therefore, it does not prevent that in other cases it must be resorted to judicial means.

The aforementioned Organic Law of Civil Registry regulated an administrative procedure

for cases in which people who decide to have a stable union do so in compliance with the
requirements of the law so that it has full effects, and as indicated above, it does not oppose
that there are different cases due to the same nature of the institution. This Law established
the ways to register a stable de facto union, as follows:

Article 117. Stable de facto unions will be registered by virtue of:

Manifestation of will.

Authentic or public document.

Judicial decision.

Article 118. The free expression of will made between a man and a woman, declared
jointly, to maintain a stable de facto union, in accordance with the requirements established
by law, will be recorded in the corresponding book, acquiring full effects from this moment
on. legal, without prejudice to the recognition of any right prior to registration.

Article 119. Any definitively final judicial decision that declares or recognizes the
existence of a stable de facto union will be inserted in the Civil Registry. The judges of the
Bolivarian Republic of Venezuela must send a certified copy of the definitively final
judicial decision to the municipal Civil Registry offices, for insertion in the corresponding
book.

Article 122. The declaration of dissolution of stable de facto unions will be registered in the
following cases:

Manifestation of will made unilaterally or jointly by persons de facto united before the
Civil Registry.

Judicial decision.

The death of one of the de facto united people, by declaration of the survivor.

In cases of unilateral dissolution of stable de facto unions, the civil registrar must notify the
other person in a de facto union, in accordance with the law.

As can be seen from the legal norms transcribed above, it is incorporated that in addition to
the judicial decision declaring the existence of a stable de facto union, the parties can
register these unions as well as their dissolution, with the simple expression of will made
between a man and a woman declared jointly before the Civil Registrar, acquiring from this
moment full legal effects, without prejudice to the recognition of any right prior to
registration.”

Access to Justice Comment: The Chamber establishes criteria regarding the registration of
stable de facto unions and establishes the difference between voluntary and judicial
declaration and the registration of the dissolution of the relationship.
Stable De facto Union Jurisprudence TSJ 2016

COMBINATION MARCH 20, 2016

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BOLIVARIAN REPUBLIC OF VENEZUELA

IN HER NAME
THIRD COURT OF FIRST INSTANCE IN CIVIL, COMMERCIAL AND TRANSIT OF
THE JUDICIAL CIRCUMSCRIPTION OF THE YARACUY STATE

San Felipe, February 11, 2009

Years: 198° and 149°

File No. 5686

ACTOR: YOVIRKA MILENA HERNANDEZ ALVARADO, Venezuelan, of legal age,

holder of the Identity Card No. 17,469,678, domiciled in Chivacoa, Bruzual Municipality
of the Yaracuy State.

ASSISTANT LAWYER

ACTOR: YARIANA SUAREZ, Pre-Lawyer No. 96.761

DEFENDANT PARTY: EDIXON ALEXANDER OROPEZA, Venezuelan, of legal age,

holder of Identity Card No. 15,768,928, domiciled at Los Leones Avenue, 04th Street,
Monte Oscuro sector, Chivacoa, Bruzual Municipality of Yaracuy State.

REASON

: LIQUIDATION AND PARTITION OF ASSETS OF THE STABLE DE FACT OR

CONCUBINARY UNION.
Considering the previous complaint, received in this Court by distribution on February 6,
2009, signed and presented by the citizen YOVIRKA MILENA HERNANDEZ
ALVARADO, Venezuelan, of legal age, holder of the Identity Card Number. 17,469,678,
duly assisted by the lawyer YARIANA SUAREZ, Pre-lawyer No. 96,761, against the
citizen EDIXON ALEXANDER OROPEZA, Venezuelan, of legal age, holder of Identity
Card No. 15,768,928, by virtue of the same, the Court observes:

In the libel brief, the applicant states that since August 2004, the already identified citizens
Yovirka Hernández and Edixon Oropeza were united in a stable and de facto concubinage.
During the aforementioned de facto union they had a son named ALEXANDER JOSSUE
OROPEZA HERNANDEZ who is currently two years and eight months old; who acquired
the following real estate, a plot of their own land and the house built on it distinguished
with town house No. 12, cadastral number 120-23-01-010212, located in the San Fernando
residential complex, Sorte avenue, Chivacoa Municipality Bruzual of the Yaracuy State, its
boundaries being the following NORTH: With 19.30 meters with plot No. 11; SOUTH:
With 19.30mts With plot 13; EAST: With 7.00 meters with municipal lands; and WEST:
With 7.00 meters with an internal street, it also corresponds to 2.10% of parceling over the
total surface of the land, in the same acquisition document formalized by the Real Estate
Registry office of the Bruzual Municipality of the Yaracuy State, under No. 7, Folios 38 to
46, First Protocol, Third Volume, Fourth Quarter of the year 2008.

TO SUCH PURPOSES, THIS COURT OBSERVES:

Article 77 of the constitutional text provides the following:

“Marriage between a man and a woman is protected, which is based on free consent and the
absolute equality of the rights and duties of the spouses. “Stable de facto unions between a
man and a woman that meet the requirements established by law will produce the same
effects as marriage.”
Concatenated with the transcribed article, we have article 767 of the Civil Code, which
states the following:

“Community is presumed, unless proven otherwise, in those cases of non-marital union,

when the woman or man, where applicable, demonstrates that she has lived permanently in
such a state even if the assets whose community is to be established appear in the name of
one only of them. Such presumption only has legal effects between the two of them and
between their respective heirs and also between one of them and the heirs of the other. The
provisions of this article do not apply if one of them is married.”

Likewise, the Jurisprudence of the Supreme Court of Justice in a ruling of the

Constitutional Chamber dated July 15, 2005, File No. 04-3301, which is binding on the
Courts of the Republic, establishes:

“…First of all, the Chamber considers that, to claim the possible civil effects of marriage, it
is necessary that the “stable union” has been declared in accordance with the Law, which is
why a definitively firm ruling is required that recognizes it…”

“…Currently, a judicial declaration of the stable union or concubinage is necessary;

dictated in a process for that purpose; which contains the duration of the same… …so the
sentence declaring the concubinage must indicate the date of its beginning and its end, if
applicable; and recognize, likewise, the duration of the union, when it has been broken and
then reconstituted, computing for the final determination, the time elapsed from the date of
its beginning…”

“…Now, marriage – due to its formal nature – is an institution that is born and tested in a
different way than concubinage or any other stable union, and therefore the latter cannot be
fully equated to marriage, and therefore, cannot be It is intended that, automatically, all the
effects of marriage apply to “stable unions”…
Having explained all of the above, this Judge accepts the criteria of the Constitutional
Chamber, establishing that it is necessary to prove the existence of the stable de facto or
concubinary union, which is ultimately what generates patrimonial effects, since such
community admits evidence to the contrary, that is, it is a juris tantum presumption; This
presumption must be proven through a very extensive range of evidence, a circumstance
that is ratified by jurisprudence.

Now, from the review of the libel of the complaint and its annexes, it does not appear that
the existence of a stable de facto or concubinary union is sufficiently proven by a
definitively final judgment for such purposes, for this reason this judge should not admit
the present liquidation and division of assets belonging to the stable de facto or concubinary
union and so is declared.

For all of the above, this Third Court of First Instance in Civil, Commercial and Traffic
Matters of the Judicial District of the Yaracuy State, Administering Justice in the Name of
the Bolivarian Republic of Venezuela and by Authority of the Law, DECLARE THE NON-
ADMISSION OF THE PRESENT DEMAND FOR LIQUIDATION AND PARTITION
OF ASSETS OF THE STABLE DE FACT OR CONCUBINARY UNION, because the
existence of said union has not been definitively proven in a final judgment. AND SO IT IS
DECIDED.

PUBLISH, REGISTER AND LEAVE A CERTIFIED COPY.

Given, signed and sealed in the Dispatch Room of this Third Court of First Instance in
Civil, Commercial and Traffic Matters of the Judicial District of the Yaracuy State. In San
Felipe, on the eleventh (11th) day of February 2009. Years: 198° and 149°.

The judge,
Lawyer WENDY C. YÁNEZ RODRÍGUEZ

The Temporary Secretary,

Abg° INES M. MARTINEZ

On this same date and at 11:15 am, the previous decision was published and recorded.

The Temporary Secretary,

Abg° INES M. MARTINEZ

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Comment

Name
To divide, separate or divide the assets, the declaration and partition of a concubinal union
with a lawyer in Caracas is necessary prior to a court through a final and firm ruling of the
stable de facto union or concubinage. There is an absolute prohibition for judges to declare
claims for the partition of concubinary communities granted when there is no record of a
ruling of a previous date that declared concubinage. They are two different situations, one
is the judicial declaration of the existence of the concubinary relationship, and the other is
the subsequent dissolution, liquidation and partition of the assets that comprise it; the
second supposes the existence of the first.

To divide, separate or divide the assets, the prior declaration and partition of a concubinary
union by a lawyer in Caracas is required by a court.

In order to ensure the declaration and partition of concubinary union, lawyer in Caracas.
Article 117 of the Organic Law of Civil Registry (LRC) provides: «Stable de facto unions
will be registered by virtue of: 1. Manifestation of will. 2. Authentic or public document. 3.
Judicial decision. From the transcribed norm it is evident that the law empowers the courts
to decide on the existence of stable de facto unions, by stipulating that concubinary
relationships will be registered by virtue of a judicial decision (section 3). So it is the
jurisdiction of the courts to recognize the existence of concubinage; It is not the exclusive
responsibility of public registries or notaries. In support of the above, article 119 LRC
states: "Any definitively final judicial decision that declares or recognizes the existence of a
stable de facto union will be inserted in the Civil Registry...".
In our capacity as trial lawyers in Venezuela, we represent before the court the citizens who
signed an agreement where they recognized the concubinal relationship they had
maintained for years. They narrate that since that union has been terminated to date, they
demand the dissolution and partition of the concubinary community. They ask the judge to
approve or approve the agreement in the same sentence, to recognize the concubinage, the
dissolution and order the division of assets. All in response to the express will of the
interested spouses.

The special law provides that the Court for the Protection of Children and Adolescents can
approve agreements for stable de facto unions, when there are minors, this being the
situation at hand, which is why the court ruled on the Recognition of Concubinage between
the applicants. , approved the dissolution and ordered declaration and partition of
concubinal union lawyer in Caracas of the acquired assets, this, in the same ruling. It means
that the sentence embraced the three requests: declaring the existence of concubinage, the
dissolution and partition of the community assets.

Definition of liquidation. Settlement is the action and result of settling, which means,
among other things, making full payment of an account, adjusting a calculation, or
finalizing a certain state of something.