Libro Primero · Título II Capítulo II. De la unión de hecho

The de facto union of a man and a woman with capacity to contract marriage may be declared by themselves before the mayor of their locality or a notary, in order to produce legal effects, provided that a home exists and life in common has been constantly maintained for more than three years before their family members and social relations, fulfilling the purposes of procreation, support and education of the children and of reciprocal assistance. 41 42

The declaration referred to in the preceding article shall be set forth in a record drawn up by the mayor, or in a public deed or notarial record if a notary is required.

Once legally identified, they shall declare under oath their given names and surnames, place and date of birth, domicile and residence, profession or occupation, the day on which the de facto union began, children procreated, indicating their names and ages, and property acquired during the life together.

Within the following fifteen days, the mayor or the notary shall give notice to the jurisdictional Civil Register to proceed with the registration of the de facto union, which office shall deliver to the interested parties proof of said registration, which shall produce the same effects as the certification of marriage.

Failure to give such notice shall be sanctioned with a fine of five quetzales, which the local judge shall impose upon request of a party.

The certification of the municipal record or the notarial transcript shall be presented to the Property Register, if immovables have been declared as common property.

Common property may not be alienated or encumbered without the consent of both parties, while the union lasts and liquidation and adjudication thereof have not been made.

No de facto union of minors may be accepted or declared under any circumstances.

Recognition of the de facto union may also be requested by only one of the parties, whether due to opposition existing or due to the other having died, in which cases the interested party must appear before the competent Judge of First Instance, who in a judgment shall make the declaration of the de facto union, if it shall have been fully proven. In said declaration, the judge shall fix the day or probable date on which the union began, the children procreated and the property acquired during it.

The certification of the judgment favorable to the claimant shall be presented to the Civil Register and to the Property Register if there should be immovable property, so that the respective registrations may be made.

The action referred to in the preceding article must be commenced before three years have elapsed since the union ceased, except for the right of the children to seek at any time a judicial declaration of the de facto union of their parents, for the sole purpose of establishing their parentage.

A woman who, knowing that the man has his de facto union with another woman registered, and a man who, knowing that the woman has her union with another man registered, make a common life together, shall not enjoy the protection of the law, while the registered union has not been legally dissolved and the common property has not been liquidated.

In the event that several women, likewise single, seek the declaration of the de facto union with the same single man, the judge shall make the declaration only in favor of the one who proves the elements provided for in Article 173; and in equality of circumstances, the declaration shall be made in favor of the oldest union. The provisions of this article are applicable provided that the de facto unions sought to be declared coexist at the time the respective declaration is requested or on the date on which the death of the person with whom the de facto union was maintained occurred.

The de facto union recorded in the Civil Register produces the following effects:

1º.Children born after one hundred eighty days from the date fixed as the beginning of the de facto union, and those born within the three hundred days following the day on which the union ceased, are deemed children of the man with whom the mother was united, a presumption against which evidence to the contrary is admissible;

2º.If there is no deed of separation of property, property acquired during the de facto union is deemed property of both, except evidence to the contrary demonstrating that the property was acquired by only one of them, by gratuitous title, or with the value or by exchange of other property of his or her exclusive ownership;

3º.Right of one of the parties to request the declaration of absence of the other and, once declared, to request termination of his or her union with the absent person, liquidation of the common estate and adjudication of the property to which he or she is entitled.

4º.In the event of death of either of them, the survivor may request liquidation of the common estate and adjudication of property, as in the case of the preceding paragraph; and

5º.Subjection of the man and the woman to the rights and obligations of spouses during marriage.

The de facto union may cease by mutual agreement of man and woman, in the same form in which it was constituted; or by any of the grounds set forth in Article 155 for divorce and separation, in which case the cessation must be judicially declared.

Cessation of the de facto union by mutual agreement must be recorded before the judge of First Instance of the domicile of the cohabitants, or before a notary; but for it to be recognized and for the respective annotation in the Civil Register to be ordered, there must first be compliance with the provisions of Article 163 of this Code with respect to the divorce of the spouses.

The man and the woman whose de facto union is recorded in legal form shall inherit reciprocally from each other ab intestato in the same cases that this Code determines for spouses.

The provisions of this Code relating to the duties and rights arising from marriage and to the economic regime thereof are valid for de facto unions insofar as they are applicable.

Once the proceedings for the termination of the union have concluded and the legal requirements have been satisfied, the authority that intervened therein or the notary who authorizes the deed of separation, liquidation and adjudication of property shall give notice to the Civil Register in which the de facto union was registered, so that the corresponding annotation may be made.

Once registered, the separation leaves the man and woman free as to status, but without prejudice to the obligations that both must fulfill with respect to the children, who shall retain intact their rights to be supported, notwithstanding any stipulation of the parents.

For the marriage of either of the two persons who have lived a common life that is registered to be authorized, it is indispensable to comply with what is prescribed in Article 183.

An interested party may oppose the marriage to require that those matters first be resolved and the common property liquidated.

The public official intervening in the marriage may not authorize it if the applicant does not prove having liquidated the common property and secured the provision of maintenance for the children.

When persons bound by a de facto union wish to contract marriage with each other, the respective authority or the notary to whom they apply shall effect it upon presentation only of certification of the registration in the Civil Register in which such circumstance is recorded. The subsequent marriage of the parents causes children had before its celebration and during the de facto union to be deemed as born of marriage.