The firm always acts with local counsel as appropriate.
Jeremy D. Morley has acted as an expert witness concerning international child abduction to Costa Rica. He is not admitted to practice law in Costa Rica.
(unofficial translation)
PRELIMINARY TITLE
General Provisions
Article 1.- It is the obligation of the Costa Rican State to protect the family.
Article 2.- The unity of the family, the interests of the children, the interests of minors and the equality of rights and duties of the spouses, must be the fundamental principles for the application and interpretation of this Code.
Article 3.- Any qualification regarding the nature of parentage is prohibited.
Article 4.- Regarding the rights and obligations between parents and children, there is no reference to those born within or outside of marriage.
Article 5 – Applicable Rules. The legal rules applicable to situations linked to several national legal systems are determined by the international treaties and conventions in force applicable in the case and, in the absence of rules of international source, the rules of Costa Rican private international law of internal source determined in this law are applied.
Article 6 – Application of Foreign Law. When foreign law is applicable, the Costa Rican judge shall apply it ex officio, avoiding renvoi, and may seek the direct cooperation of the parties. The judge shall seek to ascertain the validity, content, and current interpretation of the foreign law. This interpretation shall be the same as that given by the judges of the State to which that law belongs.
To demonstrate the above, the judge may use all mechanisms he deems necessary and, at his discretion, may use the following resources:
If there are several co-existing legal systems with territorial or personal jurisdiction, or if different legal systems succeed one another, the applicable law will be determined by the rules in force within the State to which that law belongs and, in the absence of such rules, by the legal system that has the closest links with the legal relationship in question.
If different rights are applicable to different aspects of the same legal situation or to different legal relationships included in the same case, those rights must be harmonized by the judge, seeking to make the necessary adaptations to respect the purposes pursued by each of them.
The party that considers itself affected by the violation of this rule and that has alleged it before the judgment of first instance may file, at the appropriate procedural time, an appeal for cassation for the infringement, erroneous interpretation or improper application of a law of another contracting State, under the same conditions and cases with respect to national law.
Applicable foreign law provisions must be excluded when they lead to solutions that are incompatible with consequences that violate the fundamental principles of international public order that inspire the Costa Rican legal system.
Article 7 – Law applicable to the State and capacity of persons. The law applicable to the State of persons shall be that of their domicile. In the absence of the former, the law of their habitual residence shall apply.
A person’s legal capacity will be governed by the law of the place where the family act or contract was performed. Failing that, the law of the person’s domicile will apply, and if there is no domicile, the law of their nationality will govern.
A change of address does not affect a person’s capacity once it has been acquired.
Article 8 – Law applicable to family matters. As a general rule, the parties may determine the law applicable to their legal relationship, either expressly or tacitly. This is permissible provided that it does not affect the rights of third parties or violate the principles of international public policy of Costa Rica or of the country whose law would originally be applicable in the absence of agreement between the parties.
In the absence of the above, family relations will be governed by the following provisions:
With regard to marriage, divorce, separation, and de facto unions: the law of the place where the marriage was celebrated governs the form, existence, and validity of the marriage. Claims relating to the personal and economic effects of marriage, with the exception of maintenance obligations, as well as divorce and separation, will be governed by the law of the last marital domicile and, failing that, the law of their last common habitual residence. If neither of these exists, the law of the place where the marriage was celebrated will apply. With regard to de facto unions, their personal and property effects, with the exception of maintenance obligations, are governed by the law of the couple’s last common habitual residence.
Regarding parentage: the conditions for recognition are governed by the law of the child’s domicile at the time of birth or at the time of the act, or by the law of the domicile of the person making the recognition at the time of the act. The form of the recognition is governed by the law of the place of the act or by the law governing the substance of the matter. All parentage established in accordance with foreign law must be recognized in the Republic, in accordance with the principles of Costa Rican international public policy, especially those that require prioritizing the best interests of the child. The principles governing parentage established through assisted reproductive technology form part of international public policy and must be considered by the competent authority when its intervention is required for the recognition of status or registration of persons born through these techniques. In all cases, the decision must be the one that best serves the best interests of the child.
Regarding maintenance obligations: maintenance obligations, as well as the status of creditor and debtor of maintenance, will be governed by the legal system that, in the opinion of the competent authority, is most favorable to the creditor’s interest:
The following matters shall be governed by applicable law: the amount of the alimony credit and the terms and conditions for making it effective; the determination of who may exercise the alimony action in favor of the creditor, and the other conditions required for the exercise of the right to alimony.
Article 9 – Domicile and habitual residence. For the purposes of international family law, a natural person has his domicile in the State in which he resides with the intention of establishing himself therein and his habitual residence in the State in which he has his social circle of life for a prolonged period of time.
A person cannot have multiple addresses at the same time. If a person has no known address, it is considered to be their habitual residence or, failing that, the place where they are located.
The domicile of minors is in the state where the person exercising parental responsibility resides. If both parents exercise this responsibility jointly and reside in different states, the minors are considered domiciled where they have their habitual residence.
Without prejudice to the provisions of international conventions, minors who have been abducted or unlawfully retained do not acquire domicile in the place where they are abducted, transferred or unlawfully retained.
The domicile of persons subject to safeguarding or other equivalent protection is the place of their habitual residence.
The domicile of persons acting in a diplomatic capacity, as well as persons residing temporarily abroad for reasons of work, studies or other reasons, will be the last one they had in their national territory.
TITLE I
Of Marriage
CHAPTER VII
About Divorce
Article 48 – Divorce Grounds. The following shall be grounds for granting a divorce:
Divorce may also be decreed by mutual consent of the spouses, for which they, personally, or one of them through a special attorney appointed in a public deed, must grant a divorce agreement in a public deed that contains the following points:
In the case of marriages where there are no minor children in common or assets mentioned in the agreement, the deed will be submitted directly to the Civil Registry for approval and registration. If there are minor children or assets mentioned in the agreement, the process will be carried out judicially in accordance with the Family Procedure Code.
The aforementioned agreement must be submitted to the judicial authority within three months of its notarial execution, unless the submission is made jointly by the spouses, and will take effect once approved through the corresponding judicial or administrative channels.
The agreement regarding the rights and provisions relating to the children may be modified by the Court at the time of its approval.
Article 48 bis.- If the marriage bond is dissolved, based on any of the grounds established in subsections 2), 3) and 4) of Article 48 of this Code, the innocent spouse may request, together with the action for separation or divorce, damages in accordance with Article 1045 of the Civil Code.
Article 49.- Divorce proceedings may only be initiated by the innocent spouse, except in cases of de facto separation and those referred to in subsection 8) of Article 48, in which case either spouse may initiate the proceedings. The petition must be filed within one year from the date the petitioner became aware of the facts giving rise to the action.
In cases of judicially declared absence, the spouse present at any time may bring the action. For this purpose, the Court will appoint a guardian ad litem for the defendant.
Article 50.- The death of either spouse terminates the divorce proceedings.
Article 51.- The reappearance of the absentee does not revive the dissolved marriage bond.
Article 52.- Divorce is not permitted if there has been reconciliation or marital life between the spouses after knowledge of the facts that could have authorized it, or after the lawsuit; but if a new divorce action is attempted due to a cause arising after the reconciliation, the Court may take into account the previous causes.
Article 55.- A final divorce decree dissolves the marriage bond.
Article 56- Guardianship, upbringing and education, lack of capacity of the parents to exercise them, family interrelation, food and res judicata.
Upon declaring a divorce or legal separation, the Court shall determine matters pertaining to the custody, upbringing, and education of minor children, taking into account the agreement, the physical and moral aptitudes, and the capabilities of the father and mother, in accordance with the best interests of the minor child. Likewise, the best interests of the minor children shall be taken into account.
However, if neither parent is able to exercise parental rights, the children will be entrusted to a suitable person within their family and emotional circle or, failing that, as a last resort and for the shortest possible time, to a specialized institution, which will assume guardianship functions. The Court will also adopt the necessary measures concerning family relationships between parents and children, ensuring that siblings are not separated, in accordance with Article 152 of this Code and Article 35 of Law No. 7739, the Code for Children and Adolescents, of January 6, 1998.
Regardless of the person or institution responsible for the children, the parents are obligated to cover the expenses required for their care, upbringing and education, in accordance with the provisions of Article 35 of this Code.
The decision made in accordance with the provisions of this article does not constitute res judicata and the Court may modify it in accordance with the best interests of the children or due to a change in circumstances.
Article 57.- In the judgment declaring the divorce, the Court may grant the spouse found innocent alimony from the guilty spouse. The Court shall have the same power when the divorce is based on a legal separation where one spouse was found guilty.
This pension will be regulated in accordance with the provisions on alimony and will be revoked when the innocent party enters into a new marriage or establishes a de facto union.
If there is no guilty spouse, the Court may grant alimony to one of the spouses and payable by the other, depending on the circumstances.
The claim for alimony from an innocent ex-spouse who remarries or lives in a de facto union will not be admissible.
CHAPTER VIII
From the Judicial Separation
Article 58.- The following are grounds for decreeing the judicial separation between spouses:
Article 59.- The action for separation may only be established:
Such actions shall expire after two years, except for those based on subsections 2), 3), 5) and 8) indicated. This period shall run from the date on which the spouses became aware of the facts.
Article 60 – Divorce or separation agreement regarding spouses and cohabitants.
Divorce or legal separation of spouses can be decreed by mutual consent, in accordance with the procedure established in the Family Procedural Code.
The application for divorce or legal separation will be submitted to the Court by agreement signed in a public deed by both spouses; a document in which the following points must be mentioned:
These same provisions will apply in the event of a separation agreement for de facto unions, as stipulated in Article 242 of this Code.
The agreement will not be effective for its approval if it is not presented to the court office within three months of its notarization.
The agreement, if appropriate and not detrimental to the rights of minor children, will be approved by the Court in a reasoned decision within fifteen business days. The Court may request that the submitted agreement be supplemented or clarified if it is omitted or unclear on the points indicated in this article, prior to its approval.
Article 61.- The provisions for divorce shall also be observed for legal separation insofar as they are applicable and do not contradict the provisions of this Chapter.
Article 62.- The effects of separation are the same as those of divorce, with the difference that the former does not dissolve the bond, the duty of fidelity and mutual assistance remains.
Article 63.- Reconciliation between spouses terminates the proceedings if they have not yet concluded and nullifies any judgment declaring separation. In both cases, the spouses must notify the Court jointly. Regarding property, the provisions of the judgment, if any, shall remain in effect.
CHAPTER IX
Annulment of Marriage
Article 64.- The annulment of marriage, as provided for in Article 14 of this law, shall be declared ex officio. The Civil Registry shall not register the marriage of persons under eighteen years of age.
In cases of sham marriages, annulment may also be requested by either spouse, the Director of the Civil Registry, the Director of the General Directorate of Migration and Foreigners, or any person harmed by the marriage. Both institutions must file the corresponding legal action, represented by the Attorney General’s Office.
Article 65.- The annulment of marriages referred to in Article 15 may be sought:
Article 66.– A marriage declared null or annulled produces all civil effects in favor of the spouse who acted in good faith and the children, and the consequences that this Code establishes to the detriment of the spouse who acted in bad faith.
Good faith is presumed unless proven otherwise, and in no case will the annulment of the marriage prejudice a third party except from the date on which the declaration is registered in the Registry.
Article 68.- The provisions for divorce and legal separation shall also be observed with respect to the annulment of marriage insofar as they are applicable and not contrary to the provisions of this chapter.
TITLE II
Paternity and Filiation
CHAPTER I
Children of Marriage
Article 69.- Children born after one hundred and eighty days from the celebration of the marriage or from the reunion of the legally separated spouses, and also those born within three hundred days following the dissolution of the marriage or the legally decreed separation of the spouses, are presumed to have been born in the marriage.
Children born within one hundred and eighty days after the marriage are also presumed to be children of the marriage when any of the following circumstances occur:
Article 70.- Contrary to the presumption of the previous article, proof is admissible that it was impossible for the husband to have fruitful cohabitation with his wife at the time when the conception of the child took place.
The wife’s adultery does not in itself authorize the husband to disown the child; but if he proves that it occurred during the time when the child was conceived, he will be allowed to provide proof of any other facts leading to the demonstration of his non-paternity.
Article 71.- A child born after three hundred days of the de facto separation of the spouses, who has not had notorious possession of status by the husband, shall be considered as a child born out of wedlock.
The declaration, through a trial, will be made by the Court at the request of the mother or the child, or of the person representing the child.
Article 72.- The paternity of children born within marriage may only be challenged by the husband personally or by a special attorney and, if the husband is dead or declared absent, by his heirs in the cases provided for in Article 74, except as stated in the previous article.
In cases of prolonged or incurable mental incapacity of the husband, the guardian may exercise the action of challenge, after a medico-legal study in which the mental state of the husband is clearly established.
Artificial insemination of a woman with her husband’s semen, or with the semen of a third party with the consent of both spouses, shall be considered equivalent to cohabitation for the purposes of filiation and paternity. The third party shall not acquire any rights or obligations inherent to such status.
Article 73.- The husband’s action to challenge paternity may be brought at any time and must be brought through ordinary legal channels. An exception is made in cases where the child is in notorious possession of that status, in which case the action must be brought within one year following the date on which the husband became aware of the facts that serve as the basis for the challenge. This time limit does not apply to a mentally incapacitated husband who lacks a guardian.
Article 74.- If the husband dies before the expiration of the period in which he may disown the child, his heirs may do so. The heirs’ action shall not be admitted after two months have elapsed from the day on which the child took possession of the property of the alleged father, or from the day on which the heirs were disturbed in their possession of the inheritance by the alleged child.
Article 75.- A child born after three hundred days from the dissolution of the marriage, or from the separation of the spouses judicially decreed or from the declaration of absence of the husband, shall be considered as having been born outside of marriage, unless proven otherwise.
Article 76.- The right of children to claim their birthright is imprescriptible. Upon the death of the children, this right passes to the grandchildren and is also imprescriptible with respect to them.
Article 77.- The heirs of the children or grandchildren, as the case may be, may continue the relevant vindication actions; and they may only begin them if the child or grandchild dies before reaching the age of majority, or if upon reaching it he is mentally incapacitated and dies in that state.
The transaction of the heirs prescribes in four years, counted from the death of the son or grandson.
CHAPTER II
Proof of Parentage of Children Born in Marriage
Article 79.- The parentage of children born in wedlock is proven by birth certificates registered in the Civil Registry. In the absence of such certificates, or if they are incomplete or false, parentage shall be proven by notorious possession of status or by any other ordinary means of proof.
Article 80.- The notorious possession of the status of the son consists in the fact that his parents have treated him as such, giving him their surnames, providing for his food and presenting him in that capacity to third parties; and these and the neighborhood of his residence, in general, have considered him as the son of those parents.
CHAPTER III
Parentage of Children Acquired by Subsequent Marriage of Parents
Article 81.- Children born to the same parents before marriage, once marriage has taken place, shall be considered as children of the marriage.
The corresponding declaration may be made by the father or the parents jointly in a will, in a public deed, by means of a record drawn up before the National Board of Childhood, in writing addressed to the Civil Registry, or before the official who celebrates the wedding in the application to contract marriage or at the time of the ceremony.
In the absence of the statement referred to in the preceding paragraph, legitimation will require a declaration from the Court.
Article 82.- If the marriage referred to in the previous article is declared null, the children will maintain their marital status.
Article 83.- The status of child acquired in accordance with Article 81, takes effect from the day of conception and benefits even the descendants of children who died at the time of the celebration of the same.
CHAPTER IV
Children Born Out of Wedlock
Article 84 – Administrative recognition of paternity. All children born out of wedlock and whose paternity is not recorded in the Civil Registry may be recognized by their parents; likewise, unborn children and deceased children.
If the child’s paternity has not been assigned, the acknowledgment will be made before the Civil Registry or a notary public, provided that both parents appear in person or the mother has given her express consent. The notary public must send the corresponding record to the Civil Registry within the following eight business days.
If a child has a registered paternity based on a presumption of paternity that does not correspond to the biological truth, the appropriate party may request recognition of paternity from the Civil Registry, following the administrative procedures established in the institution’s bylaws. If the registered father or mother raises a well-founded objection, the matter must be resolved through the family court process for establishing parentage.
Article 85.- Recognition through legal proceedings. In a paternity challenge or a challenge to the recognition of paternity, the son or daughter whose registered paternity is to be displaced may be recognized by means of a claim that must be filed before the end of the evidence reception and will only take effect upon acceptance of the main claim for displacement of status.
In both the cases of the previous article and the one established in this article, the official in charge or the judge may request the performance of the scientific test established in Article 98 of this Code.
Article 86.– The recognition may be challenged by the recognized party or by anyone with an interest, when it has been made through falsehood or error.
In the case of a third party, the action must be exercised only during the minority of the recognized person.
Article 87 – Recognition is irrevocable.
It cannot be answered by the heirs of the person who made it.
Article 88.- An adult child cannot be recognized without their consent. If there has been any falsification or error in said consent, they may challenge it within two years of becoming aware of that circumstance.
Article 89 – Recognition by will.
Acknowledgment of paternity resulting from a will does not require the mother’s consent. This acknowledgment will not lose its legal force even if the will is revoked.
Article 90.- No recognition will be admitted when the child already has a filiation established by the notorious possession of status.
TITLE III
Attributes of Parental Responsibility
CHAPTER I
General Provisions
Article 140 – Attributes of Parental Responsibility. Parents have the responsibility to govern their children, protect them, manage their property, and legally represent them. In the event of a conflict of interest between them, the children shall be represented by a special guardian.
Article 141.- The rights and obligations inherent in parental responsibility cannot be waived. Nor can they be modified by agreement of the parties, except as provided for separation and divorce by mutual consent, insofar as it relates to the custody, upbringing, and education of children.
Likewise, when children born out of wedlock are legally recognized, the father and mother must agree on the attributes of parental responsibility, including custody, upbringing, education, and the family relationship regime. This agreement will be made in accordance with Article 152 of this Code, either in court or before the Civil Registry, the National Children’s Welfare Board (PANI), or a notary public. In the absence of an agreement, or when the best interests of the minor child so justify, the Court will issue a reasoned decision modifying all relevant provisions.
Article 142.- Parents and children owe each other respect and consideration. Minor children owe obedience to their parents.
Article 143 – Attributes of parental responsibility and representation. Duties and rights.
Parental responsibility confers the rights and imposes the duties to guide, educate, care for, supervise, and discipline children, as well as to protect them from all forms of violence, including inappropriate behavior. This does not, under any circumstances, authorize the use of corporal punishment or any other form of humiliating treatment against minors.
It also empowers the Court to authorize the adoption of measures necessary to assist in the child’s guidance, which may include placement in a suitable facility for a reasonable period. The same provision applies to minors whose parental rights have been terminated or who are not subject to any person’s parental responsibilities, in which case the request may be made by the National Children’s Welfare Board (PANI). Placement will continue until the Court decides otherwise, after the completion of any expert evaluations required for this purpose. These evaluations must be submitted within a period counted from the date of placement.
Article 144 – Authorization for medical intervention of minors.
When hospitalization, treatment, or surgery is necessary and essential to safeguard the health or life of the minor, the relevant medical decision is authorized, even against the parents’ wishes. In cases of minors represented by the National Children’s Welfare Board, the same provision will apply in the event of a disagreement.
Article 145 -Attributes of parental responsibility. Administration of property of minor children. The attributes of parental responsibility include the right and the obligation to administer the property of the minor child.
The youngest son will manage and dispose of the assets he acquires through his work, as if he were of legal age.
Property inherited, bequeathed, or donated to the child is exempt from parental administration if expressly or implicitly stipulated by the testator or donor. In such cases, an administrator shall be appointed.
Article 146 – Attributes of parental responsibility. Property of minor children. Exempt from precautionary measures. The exercise of the attributes of parental responsibility, with respect to the property of the minor, is not subject to any precautionary measures, except as provided in Article 149.
Article 147 – Attributes of Parental Responsibility. Alienation and Encumbrance of the Child’s Property. The attributes of parental responsibility do not grant the right to alienate or encumber the child’s property, except in cases of necessity or clear benefit to the minor. In such cases, judicial authorization will be required if the property in question is real estate or personal property with a value exceeding ten thousand colones (¢10,000).
Article 148 – Attributes of parental responsibility. Replacement. Whoever exercises the attributes of parental responsibility shall deliver to his adult or emancipated child or to the person who replaces him in the administration when it concludes for another reason, all the assets and fruits that belong to the child and shall render a general account of said administration.
When the appointment of an estate administrator is appropriate, the Court, taking into account the circumstances, will determine the fee that the administrator is to charge.
In the event that the administration of the minor’s assets is in charge of persons other than the one who had custody, upbringing and education of the minor, the Court will authorize the periodic sum that must be delivered for his food.
Article 149.- The parents in bankruptcy or those ordered by the Court must provide security for their administration in accordance with the provisions for guardianship.
Article 150.- Until the administration is guaranteed, the Court will appoint a special administrator.
CHAPTER II
Parental Responsibility for Children Born in Marriage and Civil Partnership
Article 151 – Joint exercise, cases of conflict, administration of the assets of sons and daughters.
The father and mother shall exercise, with equal rights and duties, parental responsibility over their children born within marriage and de facto unions. In case of conflict, at the request of either parent, and through the family dispute resolution procedure established in the Family Procedural Code, the Court shall decide, strictly adhering to the time limits established in said Code, on the exercise of parental responsibility and its attributes, including all matters concerning the establishment or modification of the family visitation schedule. In all cases, the decision shall be made taking into account the best interests of the minor child.
The administration of the son or daughter’s assets corresponds to the person designated by mutual agreement or by order of the Court.
Article 152 – Minor Children. Attributes of parental authority, custody, upbringing, education and family relationship regime.
In the event of divorce, annulment of marriage, or legal separation or separation by mutual consent, spouses with minor children must agree, or in the absence of an agreement, the Court will issue a reasoned decision on all relevant points regarding the following:
These same provisions will apply to the termination of de facto unions for any reason and their subsequent recognition in court.
In cases of divorce and separation by mutual consent, the agreement will not be valid until the Court issues a reasoned decision approving the separation within fifteen business days. The judicial authority may request that the submitted agreement be completed or clarified if it is omitted or unclear on the points indicated in this article prior to its approval; in such cases, it must reject or modify the agreement for the benefit of the children and will intervene if the parties cannot reach an agreement.
The decisions made in accordance with the previous provisions relating to minor children do not constitute res judicata and the Court may modify them incidentally, at the request of a party or the National Children’s Welfare Board (PANI), in accordance with the best interests of the minor children or due to a change in circumstances.
CHAPTER III
Attributes of Parental Responsibility over Children Born Out of Wedlock
Article 155 – Attributes of parental responsibility. Children born out of wedlock. The mother and father, even if they are minors, shall exercise the attributes of parental responsibility over children born out of wedlock and shall have full legal capacity for these purposes.
CHAPTER IV
Extinction, Loss and Suspension of the Attributes of Parental Responsibility
Article 158 – Suspension of parental authority. Parental authority terminates:
Article 158 bis – Loss of parental responsibility attributes. The following are causes of loss of parental responsibility attributes:
Article 159 – Suspension of parental responsibility attributes. The following are grounds for suspension of parental responsibility attributes:
Article 160 – State of abandonment.
A minor will be considered to be in a state of abandonment when:
The poverty of the family does not in itself constitute grounds for declaring a state of abandonment.
Article 161 – Placement of minors in a state of abandonment.
Minors declared legally abandoned will be placed under the custody of PANI, which will act as their legal representative. PANI will place minors whose parents have only been suspended from exercising parental authority in a suitable institution or with a suitable person or family. This placement may be arranged within the same proceedings as the declaration of abandonment. In all other cases, PANI will manage the adoption or initiate guardianship of the minor.
When a person interested in adoption has processed the declaration of abandonment and the consequent loss of parental authority, they may, in the same file, process the placement of the minor, while the adoption procedures are completed.
Article 162 – Attributes of parental responsibility. Minor’s business affairs. Appointment of legal representative. When the person with parental responsibility for the minor is incapacitated for certain business matters of the minor, a legal representative shall be appointed for that business.
Article 163 – Recovery of the attributes of parental responsibility. When the reason for the suspension of the attributes of parental responsibility has ceased, the suspended person shall recover the rights by means of an express declaration of the judicial authority.
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