By Murry Page
In ancient Greek and Roman civilizations marriages were private agreements between individuals and families. Community recognition of a marriage was, by-and-large, the qualifier, and the state had only limited interests in assessing the legitimacy of marriages.
Civil and religious officials normally took no part in marriage ceremonies; nor did they keep registries. It was common for couples to cohabit with no ceremony, and cohabiting for a moderate period was sufficient for the relationship to be considered a marriage: cohabiting in this way carried no social stigma.
At the Fourth Lateran Council in 1215 the Catholic Church forbade private agreement marriages or clandestine marriages, as they were defined by the Catholic Church. The Lateran Council required all marriages to be announced in a church by a priest.
Spain followed church doctrine unquestionably, and this was certainly the case when the Spaniards arrived in Mexico. Private agreement marriages in Mexico were not recognized by either the Church or whatever government happened to be in administration at the time.
However, what came to be practiced was often different to the official line, especially in Mexico’s rural areas. A not uncommon ritual consisted of the would-be groom’s parents presenting themselves at the home of the intended bride, asking to enter and bringing with them a candle and a basket of gifts.
Although a wedding date may be set during this ritual, the church wedding was not always forthcoming. The expense of a church wedding was borne by the groom’s family and reasons would be given as to why the church wedding could not follow immediately; for example, that the future groom’s older brother had recently married and they needed time to save to meet the expenses.
Most studies show that in 1857 when the Ley Iglesias made Mexican marriages a civil contract between the couple and the State — and took away the Church’s authority over marriages — the number of private agreement marriages increased dramatically.
Despite two great movements of reform in slightly over a century, Mexican legal codes did not veer too far from the austere provisions of Spanish law denying spouses and children of private agreement marriages the legal rights of support and inheritance.
In 1928 Mexico’s Federal Civil Code adopted a provision granting partial recognition of the rights of women and children of private agreement marriages. Under the Federal Civil Code Mexico recognizes a concubinage relationship, and for the surviving partner to receive the benefits, that partner must prove a concubino status. However, not all Mexican states have ratified this federal law.
Why might the concubinage relationship be important to expatriates living in Mexico?
Increasing numbers of couples in committed relationships decide not to go through a marriage ceremony. The reasons for this include the desire to keep their finances separate, each partner may have children from previous relationships, and the possible loss of government benefits if they remarry.
Now that some Mexican states have adopted a legal process that recognizes concubinage relationships, in many of those states the relationship can no longer be established by evidence, as was previously the case. Under the new civil law in some Mexican states, if a couple is living together under a private marriage agreement, the state will not recognize it, unless the couple has registered with the civil registrar.
To ensure the survivor of a private agreement marriage receives the property rights to which he or she is entitled, an expatriate couple living together, but not “legally married” who consider themselves husband and wife must take affirmative action to protect the rights, which they may have possessed before the law came into existence.
It would be a pity if a foreign resident in Mexico were to discover after the death of their partner that the property rights to which he or she thought they would be entitled to were lost merely because they failed to take advantage of a civil ceremony available to them or to preserve the evidence necessary to prove the existence of a concubinage relationship.
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I HAVE BEEN LIVING WITH MY PARTNER FOR 38 YEARS, AND AFTER HE PASSED AWAY I WAS TOLD TO NOTARIZE WITH TWO WITNESSES THAT THEY ARE CONFIRMING YOUR BOTH HAVE ACTED AS HUSBAND AND WIFE FOR AL THIS TIME. NOW THEY SAY I HAVE NO RIGHTS. WHAT TO DO??
My spouse and I are not married, however we have been living together for 30+ years (the last two in Merida, Mexico). We bought a house in Merida almost two years ago and assumed that since the house is in both of our names, if one of us dies, the house automatically belongs to the other in its entirety. (We have nothing in our wills about this, nor is there anything in our wills that would prevent this.) Are we OK or do we need to suddenly get married?
Christine,
Thank you for your comment. However, as I am sure you can appreciate I am not licensed to practice law in Mexico. The purpose of my article was to raise awareness about a problem that some foreign nationals may face in the future.
I would recommend that you speak to a Notario about your concerns.
However, I might add that if you have a will prepared in accordance with Mexican laws, you and your partner could express your wishes through that document.
If a Canadian and an American are living together (not married) in Mexico do their wills from their home country remain as valid or does cohabitation null and void them?
I am a US citizen moving to Mexico and will be cohabitating with a Mexican citizen. He will be moving into the home that is in my name that I purchase in the state of Guerrero. If after two years of living together is he entitled to any part of that home if I keep it in my name or should I put it in my children’s name?
It should be noted that Mexican law is somewhat divided on the issue of same-sex marriages as well. Although some states do perform same-sex marriages, they are pretty much recognized throughout Mexico if performed elsewhere. Due to their success in a federal lawsuit, a same-sex couple here in Ensenada, Baja California and other couples in other states in Mexico won the right to be legally married in civil weddings. The rights of concubinage are extended to same-sex couples as well, including for purposes of immigration as the spouse of the holder of a Permanent Resident visa.