In order to consider the option of divorce in Colombia, it was required to prove before a family judge the existence of one of the grounds contemplated in Article 154 of the Civil Code or to have a mutual agreement between the couple. Under this approach, known as the causal model, only the spouse considered innocent could request the dissolution of the marriage, except in cases where the cause of separation—judicial or de facto—that had lasted for more than two years was invoked.
However, this panorama changed substantially with the entry into force of Law 2442 of 2024 (hereinafter, “Law 2442” or the “Law”), which introduced a new ground for divorce called: “the sole will of either of the spouses.”
Although this reform did not repeal the previously established grounds—thus maintaining a causal model in our legal system—it did represent a change in the conception of marriage and its dissolution, by establishing as a new ground the autonomy of the will of one of the spouses as a sufficient basis to dissolve the marriage bond, without the need for the consent of the other spouse or the demonstration of culpable conduct in the breakdown of the marriage.
Procedure
Law 2442 did not establish a new or specific procedure to carry out divorce under the new ground, so the procedure already established by procedural regulations for these family matters must be followed. Additionally, Article 7 of the Law states that the notarial process is only applicable when there is mutual agreement between the parties, which means that unilateral divorce must necessarily be processed through the courts.
For the filing of the lawsuit, in addition to complying with all the requirements established in the General Code of Procedure, Article 3 of Law 2442 requires that the spouse intending to initiate the divorce process under the new ground must attach to the claim a regulatory proposal regarding the effects derived from the divorce.
This proposal must address, at a minimum, issues related to:
- compliance with alimony obligations between spouses,
- comprehensive reparations—economic and symbolic, and
- a proposal for the liquidation of the marital partnership.
If there are minor children, the proposal must also include provisions regarding their upbringing, education, custody, visitation rights, and support. The defendant spouse may submit a counterproposal in case of disagreement with the content of the initial proposal.
When there is no agreement between the parties regarding the effects of the divorce, it will be up to the judge to adopt definitive measures to regulate these aspects. However, it is important to highlight that the judge may not deny the divorce when the new ground is invoked, since the mere expression of will by the plaintiff constitutes, in itself, a legitimate and sufficient reason for the termination of the marriage.
Gender Perspective
The new Law reiterates the duty of the judge to examine ex officio and from a gender perspective the possible existence of other grounds in addition to the unilateral ground alleged by the plaintiff spouse. In such cases, the judge may adopt protective measures to safeguard the rights of the spouse who is at risk or who may suffer serious harm to their personal integrity, life, or property.
Marriage Contracts
Finally, it is important to highlight that Law 2442 expanded the scope of prenuptial agreements (marriage contracts).
According to Article 1771 of the Civil Code, prenuptial agreements are “agreements entered into by the spouses before contracting marriage, regarding the assets they bring to it, and the donations and concessions they wish to make to each other, either present or future.”
Traditionally considered a wealth management and protection tool allowing couples to define, prior to marriage, the applicable regime for their assets, with the entry into force of the Law, it is now also possible to include in these agreements eventual indemnities in case of unilateral termination of the marriage (Paragraph 2, Article 3 of the Law).
Conclusions
By eliminating the requirement to prove fault on the part of either spouse in the dissolution of the marriage, the judicial process is prevented from becoming a scenario of re-victimization, particularly for those who have suffered domestic violence. This reform protects the emotional well-being of the individuals involved by reducing the need to relive painful experiences before the judicial system.
In short, Law 2442 of 2024 marks a milestone in the evolution of family law in Colombia, and it opens the possibility for the divorce process to cease being seen as a punitive mechanism and instead become one that upholds the autonomy of the will and respect for human dignity.
