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Colombia

27 October 2003

Proceedings relating to maintenance for minors

       "Maintenance" is understood to mean everything essential for the support, housing, clothing, medical treatment, recreation, comprehensive training and education or instruction of the minor. Maintenance shall include the obligation to pay the mother's pregnancy and childbirth expenses. Article 133, Decree No. 2737 of 1989, Minors' Code.

       Every minor is entitled to the protection, care and assistance necessary to achieve adequate physical, mental, moral and social development, and such rights are recognized from the time of conception. Article 3 of Decree No. 2737, Minors' Code.

       In the event of non-compliance with the maintenance obligation towards a minor, a request for conciliation may be submitted to the Family Ombudsman, the competent judges, the Family Commissioner or the Corrections Inspector of the minor's place of residence by either parent, by the child's relatives, by the guardian or person caring for the child or motu proprio. Article 136, Decree No. 2737 of 1989, Minors' Code.

       The right to claim maintenance may not be waived and is non-transferable in the event of death. The right to claim maintenance may not be sold or assigned in any way.

       The person owing maintenance (respondent) may not ask the claimant to offset that debt with sums owed to him by the claimant.

       Even if the parents have been deprived of parental authority, their maintenance obligation does not cease. This obligation ceases when the minor is adopted.

       As long as the respondent does not fulfil or agree to fulfil the maintenance obligation towards the minor, he may not claim custody and personal care or exercise other rights over the minor.

       When necessary, the judge will decide who is to have custody and care of the minor(s) on whose behalf the proceedings were instituted, without prejudice to the relevant judicial actions. Article 150, Decree No. 2737, Minors' Code.

       An expectant mother may claim maintenance in respect of the offspring of the legitimate father (husband) or of the man who has recognized paternity in the case of a child to be born out of wedlock. Article 135, Decree No. 2737 of 1989, Minors' Code.

Conciliation

       Act No. 23 of 1991, Act No. 446 of 1998 and Act No. 640 of 2001

       Article 35 of Act No. 640 of 2001. "Admissibility requirement. In cases suitable for conciliation, extrajudicial conciliation as of right is an admissibility requirement for application to the civil, administrative law, labour and family courts, as specified in this Act for each of these areas."

       Accordingly, in requests for imposition of maintenance payments for a minor, the child's mother or father or the child's relatives or officials dealing with the case may initiate conciliation with the person obligated to pay such maintenance.

       In this case, the (non-compliant) person obligated to pay maintenance will be summoned to the office of the Family Commissioner, the Family Ombudsman or the competent judge to try to reach agreement on the amount of the maintenance payments, the means of making them, their timing and guarantees of observance. The respondent may authorize deduction from his salary of the agreed amounts.

       When conciliation has produced agreement on the maintenance figure, method of payment, timing of the payments and relevant guarantee, a record will be prepared for signature by the presiding official and the parties. The official will then approve it by means of a writ and the conciliation will thus become enforceable; in other words, in caseof non-compliance by the respondent, maintenance enforcement proceedings will be initiated.

       If the person summoned does not appear, after being summoned twice and after the reason for the summons has been given, or if the conciliation fails, the official may establish a provisional maintenance figure and the writ establishing it will be enforceable. The official must submit the claim for maintenance to the competent judge in order for the figure provisionally established to be confirmed by the judge.

       Maintenance conciliations may vary depending on the circumstances of the person obligated to pay maintenance and the needs of the person receiving the financial support. In addition, the judicial decision awarding maintenance may be reviewed in order to revise the maintenance figure, when the respondent is the father of another minor or other minors.

       The conciliation record must contain the following information:

       Place, date and time of the conciliation hearing;

       Name of the Conciliator;

       Name of the persons summoned to the conciliation and indication of who attended the proceedings;

       Brief account of the claims that are the subject of the conciliation;

       Agreement reached by the parties during the proceedings.

       Each of the parties participating in the conciliation must receive a copy of the record.

Claims for maintenance for minors

       Claims for maintenance for minors are dealt with in the manner established in Decree No. 2737 of 1989 (Minors' Code); as specified in Decree No. 2272 of 1989, the decision is not subject to appeal.

       Claims for maintenance must contain the name of the parties, their address for notification purposes (place of residence, domicile, whereabouts or place of work), the amount of maintenance claimed, the justification for the claimand the evidence adduced and must be accompanied by any documents in the possession of the claimant. Claims may be submitted orally or in writing. If any document is missing that the claimant is unable to attach, the judge may, at the request of a party or ex officio, order the relevant authority to issue the document.

       If he deems it necessary, the judge may order attachment of the respondent's salary (in an amount that he considers appropriate) in the writ authorizing submission of the claim (in order to guarantee fulfilment of the maintenance obligation), for which purpose he shall communicate officially with the respondent's employer. He may also order retention of an amount that he considers appropriate from the respondent's severance pay, in order to guarantee the minor's maintenance in the event that the respondent resigns or is laid off from his employment.

Evidence

       Any judicial decision must be based on the evidence duly and regularly produced in the proceedings. Article 174 of the Code of Civil Procedure.

       Means of proof. The means of proof are statements by the parties, responses under oath, testimony of third parties, expert opinions, physical examination of exhibits, documents, circumstantial evidence and any other means that may help the judge to form an opinion. Article 175 of the Code of Civil Procedure.

Evidence located abroad

       When the civil proceedings require formalities on foreign territory, the judge may, depending on the nature and urgency of the matter:

       1. Send letters rogatory, through the Ministry of Foreign Affairs, to one of the judicial authorities in the country where the formalities are to take place so that it may conduct them and send the evidence back through the diplomatic or consular agent of Colombia or of a friendly country.

       2. Directly request the consul or diplomatic agent of Colombia in the country concerned to conduct the formalities in accordance with national legislation and to send the evidence back directly. The consuls and diplomatic agents of Colombia abroad are authorized to conduct all the judicial formalities in civil cases entrusted to them under article 193 of the Code of Civil Procedure.

       Evidence is provided at the request of the parties or following an official order from the judge, if he considers it necessary for verification of the facts alleged by the parties. The cost of providing evidence is shared equally by the parties, without prejudice to the judge's decision regarding the costs of the proceedings.

       Deposition. Statement made before the judge in exercise of his functions. Other statements are extra-judicial.

       Questioning. The judge may officially summon the parties to answer under oath any questions he wishes to put to them. He may also summon one of the parties, at the request of the other, provided that the request is made in due form.

       Oath. When the law authorizes the judge to request any of the parties to take an oath, the oath must be taken at the time when the evidence is to be presented, at the date and time appointed.

       Statements by third parties. All persons are obliged to make statements if requested, except in the cases specified by law.

       Expert opinion. An opinion requiring the participation of experts or persons specializing in specific scientific, technical or artistic subjects.

       Physical examination of exhibits. Proof established by verification of certain facts germane to the proceedings.

       Circumstantial evidence. In order for a fact to be considered as circumstantial evidence, it must be fully proved in the proceedings. The judge is authorized to deduce circumstantial evidence from the behaviour of the parties.

       Documents. Documents may be public or private. Public documents are those issued by a public official in the performance of his duties or with his intervention. Private documents are those not meeting the requirements to be considered as public documents.

       Authentic document. A document regarding which certainty exists as to the person who drafted, wrote or signed it. A public document is presumed to be authentic, unless the contrary is proved by evidence of forgery. Private documents are authentic if they meet the requirements specified by law.

       In order for proceedings to be initiated for recovery of maintenance for minors, the relationship between the minor claiming maintenance and the person obligated to provide it must be proved. This shall be done by reference to the Civil Registry where the minor's birth is recorded. The financial ability of the respondent to provide maintenance must also be proved, even summarily (reason to believe). If such ability cannot be proved, an analysis will have to be made of the respondent's social position and habits and it will ultimately be presumed that the respondent will pay the minor the minimum wage.

       In order to demonstrate the respondent's ability to pay, a certificate of income and statutory allowances, if he is employed, may be requested as evidence (documentary or oral). The Land Registry Office may be requested to report on immovable property owned by the respondent. The Transit and Transport Secretariat may be asked to determine the ownership of automobiles registered to the respondent. The Chamber of Commerce may be asked to establish the respondent's ownership of or participation in commercial firms. The national Tax Office may be asked to provide the respondent's tax return, and credit or banking institutions may be asked to report on the respondent's balances and on credit card usage. Oral evidence may also be sought, in which persons are asked about the respondent's income.

       Maintenance is due at the time of the first claim and must be paid monthly in advance, during the first five days of the month in question. Article 421 of the Civil Code, in conformity with the second paragraph of article 498 of the Code of Civil Procedure, Decree No. 2282 of 1989.

The maintenance order may specify:

       An amount to be deducted from the respondent's pay or salary, which may not exceed 50 per cent of his monthly income. Establishment of a fund, the income from which will be used to make the established maintenance payments.

       A specific sum of money, depending on the respondent's demonstrated ability to pay.

       Maintenance payments will increase annually, either in order to reflect cost-of-living increases or as agreed between the parties during the conciliation.

Maintenance enforcement proceedings

       In the event of non-compliance with the maintenance obligation agreed during the conciliation or decreed by decision of the judge, the family judge concerned may initiate maintenance enforcement proceedings, with the legal consequences, if necessary, of attachment and auction of property.

Complaints of failure to provide maintenance

       "Any person who without good reason fails to provide maintenance legally due to his relatives in the ascending line, descendants, adopter or adoptee, or spouse shall be liable to imprisonment for a term ranging from one (1) to three (3) years and a fine ranging from ten (10) to twenty (20) times the monthly legal minimum wagein force."

       "The penalty shall be imprisonment ranging from two (2) to four (4) years and a fine ranging from fifteen (15) to twenty-five (25) times the monthly legal minimum wage in force if the failure to provide maintenance concerns a minor under fourteen (14) years of age." Article 233 of the Penal Code.

       "Aggravating circumstances. The penalty specified in the preceding article shall be increased by up to one third if the respondent has fraudulently concealed, reduced or encumbered his income or assets in order to avoid paying maintenance." Article 234 of the Penal Code.

       "Repetition. Enforcement of the sentence shall not preclude the initiation of further proceedings if the person concerned again fails to make maintenance payments." Article 235 of the Penal Code.