Convivencia Legal Peru

The family is considered the fundamental centre©of society and the State seeks its protection by granting it a legal framework that protects the resulting legal relations. This necessary protection is reflected in the Constitutions of 1979 and 1993, which recognized the existence of a constitutional principle recognized as a principle of protection of the family. What is the difference with marriage? Unlike marriage, where there is the possibility of choosing between the regime of community of property and the regime of separation of property, in a de facto union, the state of ownership is unique and enforced, that is, all property and income obtained during the validity of coexistence also belong to the spouses. This constitutional legal basis has favored the institutional presence of cohabitation in the current Peruvian Civil Code of 1984, and these legal foundations, the Constitution and the Civil, have been the support of the current Peruvian Political Constitution of 1993, which it maintains in article 5: In the doctrine, it is recognized that coexistence can be of two types: clean and inappropriate. Poor cohabitation refers to unions between a man and a woman in which there is a marital obstacle that does not allow a future marriage between them. While self-coexistence is configured when man and woman have stable coexistence and are free from marital barriers.[1] The latter type of cohabitation is one that is recognized by our system as a de facto union and that we have dealt with. Precisely its own coexistence, which, together with the requirements laid down in Article 326 of the Civil Code, could give rise to the creation of a de facto union after notarial or judicial proceedings, which recognises all the factual situations ±quit, in the abovementioned article, as a legal consequence of the formation of a de facto union. Cohabitation, cohabitation or de facto marriage is a legal figure that protects cohabiting couples who adopt them. In practice, it is a type of informal marriage in which ancestry is obtained through the mutual recognition of the couple. It is important to register it in order to obtain important rights. It must adequately protect coexistence and the resulting family relationships.

The Civil Code must take into account the changes and follow the line that the 1993 Constitution has now followed. According to Peruvian legislation, de facto union is the free and voluntary coexistence between a man and a woman, free from marital obstacles and having lasted at least two years without interruption to achieve goals and perform tasks similar to marriage. [1] INEI (2017). INEI disseminates the database of the 2017 national censuses and the socio-demographic profile of Peru. Retrieved from: m.inei.gob.pe/prensa/noticias/inei-difunde-base-de-datos-de-los-censos-nacionales-2017-y-el-perfil-sociodemografico-del-peru-10935/ (2020-12-08). The Constitutional Court states in judgment 06572-2006-PA/TC with regard to coexistence that de facto unity can be distinguished as follows: cohabitation in the narrow sense (correct or pure) and cohabitation in the broad sense (inappropriate cohabitation or adultery). The first assumes that people who de facto form trade unions have no obstacles to getting married. That is, they are suitable for accepting marriage.

On the other hand, the second case covers couples who cannot marry because one or both of them already have a conjugal relationship with a third person or are prevented from marrying for another reason. As stipulated in the Constitution, the one regulated therein is cohabitation in the strict, pure or correct sense. The PUCP Editorial Fund has published its collection „L`essentiel du droit“. Ahà highlights the book Institutions of Peruvian non-patrimonial family law (Lima, 2018), written by Professor Roger Rodrãguez. We share this fragment of the text, which explains in an amusing and simple way what the concept of cohabitation (de facto union) is in Peruvian legislation. With regard to point 7, it should be mentioned that, in accordance with Article 474 of the Code, spouses may request maintenance. Can the same be demanded in a de facto Union? Article 474 of the Civil Code itself gives us the answer, because nowhere does it mention union members as people who can ask each other for food. The maintenance issue is dealt with in article 326 of the Civil Code only if it is stipulated that it is only in the event of a unilateral cessation of coexistence©with this inadmissible act that the injured party can claim exactly the maintenance. In this sense, the pension is regulated only in moments of coexistence©and not as long as it remains in force, as if it were determined by the Civil Code in respect of the spouses. We believe that the norm setting out the rights of members of the de facto Union should also©provide for obligations in a clear and precise manner, as is the case with marriage. Therefore, it is worth asking whether the balance is consistent with the main socio-demographic changes mentioned in the last census of 2017, both in terms of recognition of their personal and patrimonial effects. According to their findings, Peruvian couples currently prefer to live together in Peru rather than get married.

However, and in this context, what is the state doing to fulfill the constitutional mandate to promote marriage? Does the current civilian regime encourage Peruvian couples to marry? On the other hand, public policies must be orderly to achieve this objective. In this context, it is worth asking what measures the State should take to encourage couples to choose marriage rather than cohabitation.