It is commonplace that judgments are won or lost on the test. In fact, the professional consultation of daily work is rich in this type of situation: the reason of the interested party seems unquestionable, and yet professionals are in need of dissuading the promotion of legal actions, attentive to the evidentiary limitations. The case that summons us today is illustrative. In fact, not only the case is, but also the issue at stake: concubinage.
Before the death of his
partner, the woman who had accompanied him during the last decade of his life promoted legal action against the heirs of the deceased. The claim was sung: he requested the judicial recognition of life in concubinage and by virtue of it he asked that the concubinary nature of various assets be recognized, which, he said, were acquired at the expense of the common wealth.
After a long and zigzagging process – in the first instance the Judge gave the reason and the Court of Appeals later revoked – the Supreme Court of Justice (“the SCJ”), in a divided ruling, ended up rejecting the claim.
In the opinion of our highest court, the claimant had the burden of proving concubinage: that is, the existence of a cohabitation relationship for more than 5 years. However, the SCJ concluded that the plaintiff had only managed to prove cohabitation for 4 years and 1 month, insufficient time to characterize the concubinary union. Although the evidence provided was multiple, it did not have the necessary convincing power.
The
judgment said: The precision displayed by the defendant’s witnesses finds solid support in objectifiable elements. (…) and leads to the privileging of the narrative of these over those proposed by the complaining party.” He added: “… When the contradictions are serious or fall on the main fact, it is up to the judge to determine, with a severe criticism of each one and the whole, whether he should discard the several testimonies or if he can give credibility to some or several taking into account that the testimonies are weighed and not counted, that is, according to the result of the meticulous criticism of all.
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This communication is for information purposes only. It cannot and should not be understood as legal advice from this firm. Bergstein has a team of specialists who can be contacted to assist you in this matter. For any questions regarding this material, please contact Dr. Guillermo Duarte ([email protected]).
