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Legal experts doubt Costa Rican courts will uphold gay-marriage provision

July 7, 2013

On Monday, Costa Rica printed a controversial law in its official publication, La Gaceta, that could open the door to gay marriage.

The measure, a reform of the country’s Young Persons Law, modifies part of the code covering civil unions, or what could be called common-law marriages, between those who have been co-habitating for three or more years. It outlines “the recognition of the right, without discrimination contrary to human dignity, to social and hereditary benefits of civil unions.”

The law applies to Articles 243, 244, and 245 of Costa Rica’s Family Code. These measures give several benefits to a couple that can prove they have lived together for three years. Couples would get an expedited court process for union recognition, and the union is backdated to the beginning of cohabitation. Partners also can apply for alimony in the event of an unjustified and unilateral separation.

The law passed last week in the Legislative Assembly gained President Laura Chinchilla’s approval on Thursday. While some conservative opponents of the measure insisted Chinchilla veto the measure, others offered reassurances that it could not survive a legal challenge. Article 242 of the Family Code establishes civil union for cohabitants, “between a man and a woman.” The reformed law passed last week and written by leftist San José lawmaker José María Villalta, of the Broad Front Party, specifically references that it applies to Articles 243 thru 245. However, Article 243 refers back to Article 242.

Several same-sex couples have said they were waiting for La Gaceta to publish the law before attempting to petition the judicial branch for recognition. A spokesman for the courts said on Monday that they had not yet seen any applicants.

The daily La Nación interviewed legal experts on Saturday who doubted the measure would survive a legal challenge. “The Family Code signals what kinds of marriages are not valid,” Marvin Caravajal, a constitutional lawyer told La Nación. “Effectively, the possibility for people of the same sex is excluded in the Family Code. From my point of view, this is a constitutional prohibition.”

Article 14 of the Family Code lists a series of those ineligible for marriage, including those of the same sex. The article also makes exemptions for blood relatives and those already married.

Pedro Beirute, a family practice lawyer, agreed. “The gay community’s intent on having their marriages approved is utopian,” Beirute told La Nación. “The constitution would have to be reformed. A judge that says a homosexual marriage is possible could be accused of lying.”

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