By Marcos Chiluisa
Ecuador is a country in development and is also consistently adapting to the constant changes in society. The Ecuadorian civil code was created in 1861 and at that time society and culture in Ecuador were very different from what they are now. Ecuador has gone from being an eminently agricultural country to a country where there is a growing middle class of young professionals who, for 30 years, have been guiding advancements socially, culturally, technologically, and politically in the country.
During the last 10 years Ecuador has gone from being a country of emigrants to an attractive country for migrants. Since 2009, Ecuador has become a prominent destination for North American expatriates, and in just the last 5 years Ecuador has also become a destination to those living in other Latin American countries.
This movement of people has generated new commercial, investment, and business opportunities while also inviting new families into the country. This has generated many questions regarding laws surrounding partnership and marriage. We hope that this article will address some of the questions regarding marriages between foreigners residing in Ecuador, marriages with Ecuadorians, domestic partnerships, and same-sex marriage. In order to have a better understanding of these terms and the laws surrounding them we must define the terminology used within Ecuadorian legislation.
1.- Marriage Civil Code
As defined in actuality within the Ecuadorian civil code, marriage is a solemn contract by which two people join together with the aim of living together and supporting each other.
For 150 years, the legal concept of marriage in Ecuador was this: “Marriage is a solemn contract by which a man and a woman are united with the purpose of living together, procreation, and mutual assistance.” This concept was changed by a resolution from the Constitutional Court No. 10, published in the Official Register Supplement 96 on July 8, 2019, in which the expression "un hombre y una mujer" (a man and a woman) and the term "to procrear" (to procreate) was declared unconstitutional.
The constitutional court is the governing body in charge of reviewing the legality and constitutional obligations of laws passed by Ecuadorian legislation. Regarding the recognition of marriages in Ecuador between same-sex couples, this governing body released the following message: "there is no contradiction between the constitutional text and the conventional one, but well complemented, the right of marriage recognized to heterosexual couples is complemented with the equal right of marriage to same-sex couples.”
2.- Marriage celebrated abroad must be registered in Ecuador in order to retain all legal rights. It can also be celebrated abroad before an Ecuadorian consular authority.
One of the rights that is awarded to couples who get married in Ecuador is that a partnership of property is provided for both spouses. This means that any couple who registers their marriage at the civil registry of Ecuador or Ecuadorian consular officer abroad will be awarded conjugal partnership to any property acquired by either spouse. In other words if either spouse buys real estate the two will equally own the property 50/50.
Those who have been married in a foreign nation and become domiciled in Ecuador will be regarded as holding separate property provided that, in accordance with the laws under which they were married, there has been no property partnership between them. This means that it is necessary to have a prenup agreement which addresses ownership of all their assets as part of the marital partnership. The heritage such as assets and liabilities, will then belong to the spouses in equal parts.
The administration of the conjugal property can fall on either of the spouses. This means that for the purchase of property, either of the two spouses can acquire and/or sign, but at the time of sale or in case of acquiring a debt, the signature of the two is required.
3.- Since 2019 marriage between same-sex couples has been recognized by the Ecuadorian state. This recognition provides same-sex couples with the right to marriage as well as patrimonial and hereditary rights.
4.- Domestic partnership or “Union de Hecho” has been celebrated in Ecuador since 1982. This Ecuadorian legislation recognizes those people who are not married but are living together, and grants them the same rights that couples have with a marital bond.
This means that any Ecuadorian or foreign person will be governed by the same rights and obligations as those recognized within marriage.
In order to legally recognize a de facto union in Ecuador the couple will have to declare their partnership in front of a notary in Ecuadorian territory. The appropriate way to recognize a de facto union abroad will depend on the laws of the country of origin of the foreigners. For example, in the very particular case of Canada and under Canadian law, the de facto union is recognized by tax law. This means that a couple must have been cohabiting in a stable manner for at least the last 12 months before submitting a tax return. This is a very specific case and each country will have their own specific laws regarding domestic partnership.
5.- Rights regarding real estate purchases and sales
In Ecuador, when a person of civil status buys a property, it is not necessary for the spouse (spouse or common law partner) to sign the deed. In my 15 years of real estate practice I ask the following question every single time we close on a property, “If a married person signs the deed, does this mean that they are the sole owner of the property?” The answer is no. If a married person signs the deed of a property it signifies that both the married signer and the spouse of the signer are equal owners of the property. When it is time to sell the house both of the spouses will be required to sign the sale. Thus it should be made very clear at the signing of the deed if the signer has a spouse so that there are no complications when completing the sale of the property.
6.- Hereditary rights.
The inheritance laws of Ecuador are very strict with hereditary rights and the order in which people are called to be beneficiaries. The first beneficiaries will always be the children, second the parents of the deceased person, and in third place the spouses or the common law partner. Having the marriage or de facto union registered in Ecuador will be of great help when transferring possessions (Ecuadorian probate process). Regardless of beneficiary rights, a good practice recommended in law is to register the de facto union or the marriage celebrated abroad in the country of residence. This will guarantee that the rights of the surviving spouse are recognized by Ecuadorian law. I want to make it clear that the only way a marriage is registered in Ecuador is directly through the civil registry and by bringing an updated copy of the marriage certificate that is no older than six months. There are people who have their spouse listed on their cedulas, but this is not a marriage record. The information on the cedula is only informative, but does not provide hereditary rights.
NOTE: The reason why the marriage certificate should not be older than 6 months is because in Ecuador a divorce process takes approximately 6 months and as a general rule the country's authorities want to be sure that people are still married or in a de facto union at the time of the registration.
Within the current Ecuadorian legislation there are usually solutions for specific scenarios such as those named above, but there are also unique cases that are not addressed within the laws of Ecuador. So it is highly recommended that one consults a trusted lawyer in order to prevent inconveniences in the future.