This article is the beginning of a new category here in MyMexicanLawyer.com, which will be called “Debatable information…”. The idea behind this category is that much of the law is interpretation and application: Sometimes the law says things that we have to interpret and find out how they actually work in the real world. Warning, much of the information that you will find in this category is not going to be based solely in the law, but also in how the law is applied; even though it may be true in the case explained, it might not be applied the same for your particular case. Use this information as a reference and always consult with a legal professional, who you are paying, before jumping into any legal business that you are getting into.
I recently received a couple of questions by email and comments to the article about marriage that asked about the STD test that was mentioned as a prerequisite for marriage. The law in Quintana Roo is clear that a “chronic, incurable and contagious” disease is an impediment for marriage. This distinction is important, in some states in Mexico there is no “contagious diseases” clause in the legislation and some states even specifically mention that people with Sexually Transmitted Diseases can marry (Yucatan and Chihuahua).
Legal Theory
In Quintana Roo, an STD causes the marriage to be “relatively null”, which means that the legal transaction of the marriage can be fixed by fulfilling a certain requirement. In this case, the requirement is that both partners in the marriage know that there is an STD in the mix and are in agreement with the marriage anyway, then they must allow sixty days to pass and the marriage will be legally perfect. Sounds easy enough, right?
The Law
In the Quintana Roo’s Civil Code, which dictates the rules about marriage, one of the requirements to solicit the marriage license is the lab results of a medical test that certifies that the spouses have no sexually transmitted diseases or in its defect a special dispensation from a Family Court Judge allowing the marriage. Later in the law, there is an article that specifies that any official of the Civil Registry who knowingly marries two people who have any of the impediments mentioned in the law, without this dispensation, will be subject to criminal charges and loss of his position.
So, in “mortal” terms, you can “fix” a null marriage if it both partners know that they have an STD, enter into the contract willingly and 60 days have passed. However, the Official can’t legally marry you if he knows that one of the partners has a venereal disease.
Civil Registry
After talking to the senior lawyer in my office we decided that the best thing to do at this time would be to talk to someone in the Civil Registry directly. I went to the office and was helped by a very nice young lady, who told me that it wasn’t possible to get married if one of the partners has an STD. I explained to her about the Civil Code and she decided that I should go talk directly to the director, who happily received me.
The Director of the Civil Registry in Solidaridad says that it is possible to get married with the impediment of an STD, but a dispensation from the head of the Civil Registry at the state level would have to issue the dispensation. I would imagine that would take time, but it is a possibility. It is important to mention that the Civil Code of Quintana Roo does not gives this kind of power to anyone at the Civil Registry Office.
Unconstitutional?
There is debate that this is unconstitutional, the idea being that anyone should be able to decide to marry whoever they like and do whatever they want with them (as long as it is legal). According to many State Civil codes the purpose of marriage is for “procreation” and the Mexican Constitution protects the choice of every person to decide the number of children they will have.
I am not an expert on constitutional law, so I will leave that to someone else to tackle. I think that there is probably a valid constitutional case here, but the clerks in the Civil Registry are only empowered to fill a checklist of requirements, not interpret constitutional law, so you may have a hard time using the constitutionality argument to get your marriage performed.
The Legal Option
The option that seems to be the most formally and legally accepted, is obtaining the dispensation from a Family Judge, which would take some time and also money, but is the only option that the law actually mentions, therefore the surest bet.
Don’t try this at home…
I’ve heard of people where the test for sexually transmitted diseases was performed, supposedly by a pubic institution, without having blood drawn, spit swabbed or anything else properly probed. These couples were later issued a completely valid, legal certificate stating that they have no sexually transmitted diseases.