Each state regulates it differently. In Jalisco, on May 6, a reform was published that seeks to facilitate the establishment of concubinage.
Until before the reform of May 6, the concubinage was configured if “an unmarried man and woman live as if they were spouses, for 5 years or more”. Or also if after 3 or more years they had given birth to a child.
With the recent reform, in order to configure the concubinage, it is only necessary that this life as a couple has been for 3 years, if there were no children; or that they have had a child, no matter how long the “de facto” union lasted.
Despite this new regulation of the Civil Code, it should be noted that the precedents of the courts are even more generous. And this generosity of the precedents would prevail over the law in case of controversy. The points where precedents go even further than the law are:
1 It is not so indispensable or sacred, the term that the law contemplates. For the jurisprudence the important thing is that there has been a family relationship, based on a constant and stable cohabitation, founded on affection, solidarity and mutual help. If that relationship lasted 2 years and 10 months (without children), there would be elements to allege concubinage.
2 It is not necessary for the cohabitants to be single. The law still points out the need for both persons to be free of marriage in order to claim concubinage. Precedents have made it clear that this is not necessary. Cohabitation can be updated even if one or two of the cohabitants are married to other persons. What is important is that a family relationship exists between the cohabitants, based on a constant and stable cohabitation, founded on affection, solidarity and mutual help.
3 There can be a cohabitation between persons of the same sex. The Civil Code of Jalisco still refers that concubinage is between a man and a woman. But according to judicial precedents, a lawsuit could easily allege that the concubinage was between two persons of the same sex.
And what is the magic of concubinage? It gives property rights between spouses (alimony, inheritance, compensation, etc.) similar to marriage.
And from when will the reform apply?, will it only apply to couples who joined before May 7, 2021 (date on which the reform came into effect)?, or will it also apply to couples who separate after the reform comes into effect, regardless of whether they joined before the reform existed?
It is going to be an interesting question that will come up in more than one trial. But without hesitation, I would go for the second option. Taking into account the precedents that exist regarding “when divorce reforms apply”. Jurisprudence has held that divorce reforms published on X date apply to marriages that divorce after X date. Regardless of whether they were initiated prior to X date.
