QCOSTARICA – The possibility of a Costa Rican marrying one of his relatives by affinity, such as his ex-brother-in-law or ex-sister-in-law, is completely ruled out by subsection 2 of article 14 of the Family Code, in force since 1974.
This rule prevents unions between the husband and his wife’s relations by blood, or between the wife and the husband’s relations by blood.
However, since last October 20, the matter is under review by the magistrates of the Constitutional Court or Sala IV as it is commonly referred to, who accepted for study an action presented against the regulations, considering that it is contrary to article 28 of the Political Constitution, as well as to the principles of reasonableness, legal freedom, and autonomy of the will.
Kinship by affinity consists of the civil bond that is established between one of the spouses and the blood relatives of their consort due to marriage. Along the same lines and to the same degree that a person is a blood relative of one of the spouses, they are related to the other spouse.
According to article 14 of the Family Code, marriage between two people who have this relationship is legally impossible and it is even added that “the impediment does not disappear with the dissolution of the marriage that gave rise to the kinship by affinity.”
The action recalls that article 28 of the Constitution establishes that “private actions that do not harm public morals or order, or that do not harm third parties, are outside the action of the law.” Precisely, the person who filed the action alleged that the contested rule damages this article that protects the principle of freedom.
In addition, it adds, Article 17 of the American Convention on Human Rights on Protection of the Family is violated. “There is no objective justification to conclude that there is a psychological, physiological or social need that warrants the imposition of impediments to marry a person with whom there are no blood ties. It is a decision made by people with full cognitive capacity, of legal age and who express their desire to marry,” it claims.
On August 8, 2018, the Sala IV annulled subsection 6 of Article 14, which prohibited marriage between persons of the same sex. In this way, the magistrates complied with the Legal Opinion of the Inter-American Court of Human Rights, of January of that year.
Basis of prohibition
Why is there this impediment? Lawyer Óscar Corrales Valverde, explains this rule is derived from a canonical-legal-moral vision that has existed and has been practiced since the beginning of written law, when Roman law was the one that prevailed in ancient European times.
At that time, he said, it was not well seen that if my son is married to a girl and they divorce, that I ‘divorce’ my daughter-in-law, because of the intimacy that happened within the families it was seen – from the moral – as something depressing, which is why the prohibition of consanguineousness was coupled with affinity. That is, it cannot be considered that there is a complete breakdown in marriage and affinity relationships.
“When the power of the Church emerged from the 3rd to the 5th centuries and then the Middle Ages began, the Church centralized and controlled everything. There the Inquisition came and it was the one that administered churches, cemeteries, birth and marriage records, among others. It was the time of the pontifical states and canon law adapted the Roman Civil Code to what the Church needed, including the regulation of marriages.
“Later, when the stage of liberalism came and codifications began to be made, Napoleon commissioned a group of jurists to draft laws for France and they saw that Roman law adapted very well to the liberal system. That legislation spread to Europe and then to America, so Roman institutions, which were very similar to canonical ones, were the ones that passed to us, including marriage.
“Being influenced by the Church, morality had a great influence on all legislation and hence the regulation of abortion or the impossibility of marriage between persons of the same sex, because the whole condition of natural law was intimately linked to the morality of the time, ”explained Corrales, who was a superior judge in the Family Appeals Court in San José from 2002 to 2008.
The lawyer and professor of Family Law at the University of Costa Rica (UCR) argued that, according to ancient texts on the subject, kinship by affinity is not a mere casual denomination, but a civil family status. Hence, the laws have deemed it prudent and ethical not to allow a subsequent marriage between people who had a civil relationship between them.
“A son-in-law has been considered, throughout history, as a son legally speaking. The figure of the father-in-law or mother-in-law is a civil father. Moreover, two people without any parental bond between themselves, go on to form a civil bond created by law by the fact of marriage between them, which significantly modifies the status of each of these people civilly speaking, with repercussions in all areas of their life and their relationships, this is what is called in family law the state of the family,” he explained.
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Corrales added that the traditional doctrine of philosophical, ethical, sociological and legal roots, such as the case of a Classic Legal Library, includes in its eighth volume on Civil Law an epigraph expressly dedicated to this marital impossibility.
There it is indicated that the prohibition of marriage between close relatives is based on a moral reason, since the existence of that union is often very intimate, because family life brings them all together under the same roof and the perspective of an upcoming marriage could cause disorder.
“Not much has to be added. The old moral and legal school considered it inadmissible to allow a marriage between relatives in direct line even when it is a kinship by affinity. It is important to note that the dissolution of said bond, by divorce or death, does not destroy the validity of the bond that existed, and due to the valid existence of the bond, although it belongs to the past, the law considers it impossible to allow a new bond for moral reasons,” concluded the expert, who worked as a judge for 25 years of his career.
In studying the unconstitutionality action, the Constitutional Court requested a pronouncement from the Office of the Attorney General.