For Colombian citizens who are not familiar with these types of legal terms and who live abroad or plan to settle outside their country, this information may be useful.
The exequatur is a legal institution or jurisdictional procedure that arises from private international law so that judgments rendered abroad have effects within the national or local territory. In other words, it is a process of homologation of court judgments and/or arbitral awards produced in a foreign country to be effective in Colombia, once the competent judge determines that they meet the substantive and formal requirements that Colombian law provides in Articles 606 and 607 of the General Code of Procedure.
This process is important for Colombians living abroad because they can certainly be immersed in legal proceedings that may alter their civil status and define rights and obligations due to kinship, the effects of which should be extended to Colombia, for example. However, in order for such judicial decisions to transcend locally, they must undergo the process of homologation or exequatur within the national territory, and the Civil and Agrarian Chamber of the Supreme Court of Justice is competent to hear this matter.
It is a process of homologation of court judgments and/or arbitral awards produced in a foreign country to be effective in Colombia.
Unfortunately, it is a complex proceedings because its requirements are quite rigid, and the differences in the judicial systems of the foreign country with the national one, as well as the differences in the language, sometimes are an obstacle to obtaining the result of homologation.
In the undergraduate thesis of the Universidad San Buenaventura, on the causes for refusal of exequatur, jurisprudential analysis of Noreña and Lopera (2015), the students identified that there is a high percentage of refusal of exequatur due to the lack of compliance with some of the formal requirements enshrined in Article 606 of the General Code of Procedure; such as, for example: “Failure to submit authentic and duly legalized copy coming from the foreign court” .
It has also been denied for substantive requirements, such as not proving the lack of diplomatic reciprocity on the recognition of foreign judgments and/or arbitral awards in its territory through an international treaty or domestic legislation that regulates it. Other grounds for refusal found by the students in their thesis were: violation of public order rules; the existence of a judgment on the same matter; or failure to prove that it was a judgment.
In turn, another formal requirement that can be complex to meet is to demonstrate that the foreign judgment is duly executed or has a definitive nature, that is, that the appeals have not been filed in the opportunities provided by law or having been filed, have already been resolved. Since, in many legislations, this proof does not exist or is not necessary, since the mere existence of the judgment is sufficient to demonstrate its definitive nature.
Upon verifying the jurisprudence and the judgments on exequatur matters, it has become evident that a great number of them correspond to divorces.
The recommendation of J Kelley Law Group is that before proceeding with a procedure that has to do with a Colombian national or assets in Colombia (The Civil Code establishes a personal and territorial statute regarding the civil status of nationals and assets located in Colombia, that is to say, that the Colombian national where he/she is located is also subject to Colombian law, As well as the assets located in the country) seek advice from a Colombian lawyer to verify which would be the most convenient procedure, taking advantage of the fact that currently there are international agreements that regulate certain procedures that may affect the civil status or rights and obligations in favor of Colombians, such as international adoption and alimony.
Regarding divorce proceedings, it is recommended to analyze with a lawyer the convenience or not of proceeding abroad, taking into account the obstacles that may represent its homologation in Colombia. Likewise, in case a divorce proceeding has already been carried out, it is recommended to get proper advice from an expert legal professional who can carry out these proceedings and/or verify the need to repeat the actions in Colombia.