Interés jurídico del cónyuge en la acción de simulación de negocios jurídicos realizados por su consorte

Abstract

The fraudulent act is conceived as an action of prevalence through which is revealed a legal act that is hidden behind an apparent one. Here, the legitimacy in the case concerns everyone who has a legal interest protected by law, in which the hidden act prevails over what was declared by the parties in the ostensible act. In other words, the ownership of the right that is claimed is impeded or disturbed by this apparent act, which results in serious and current damage. In this sense, this legal action may be taken by the parties involved in the apparent act, third parties with some interest and one spouse in respect of the business done by the other. The latter, according to the current position of the Supreme Court of Justice, has a legal interest through the dissolution of the conjugal society or, at least, of the lawsuit which, if successful, implies it and whose writ of admission had been notified to the deceiver. All this because, while the marital partnership is in force, each spouse freely administers and disposes of the goods that he or she acquires during the marriage. For this reason, and as long as this partnership is not dissolved, neither of the spouses can attack the acts done by the other.

Thus, the objective of this work is to identify whether, before the dissolution of the marital partnership, the spouse has a legal possibility to sue for fraudulent businesses carried out by his or her legal partner. For this purpose, the legal background of the marital partnership regime was examined; norms, jurisprudence, and doctrines were analyzed in order to establish the origin of the marital partnership and its legal nature; the constitutional basis of the economic status of marriage was also determined; and the fraudulent action was discussed in order to go over the analysis of the Court's current position. The latter has been opposed by some jurists of the same institution who have expressed their thesis in their dissenting opinion and who propose to allow the possibility of declaring fraudulent those acts carried out by the spouses since the actual beginning of the marital partnership and not only through its dissolution.

The methodology used to develop this research focused on the review and selection of normative, doctrinal and jurisprudential sources, which allowed us to establish that the theory that seeks to replace the current position of the Supreme Court of Justice is in accordance with the constitutional postulates that support patrimonial relations within the family. Moreover, this theory is in line with the substantive norms that regulate the regime of the marital partnership and the fraudulent action in Colombia, although in no way contradicts the theory of legitimacy by acting as determined by the fraudulent action. This, because the spouse, like any other person who wants to sue for fraudulent action, will only need to prove a serious and current legal interest, which is verified, in this case, when there is evidence of the facts that violate or put in serious and imminent risk the patrimonial rights of the marital partnership.