Will maintenance debtors be able to leave the country? Bill introduces key changes to immigration restrictions

By ECIJA Editor.

A bill entitled Law to make the departure from the country of persons with maintenance obligations more flexible (reform of article 261 and addition of an article 261 bis to Law No. 9747 of the Family Procedural Code), file 24.815, currently under analysis in the Legislative Assembly, proposes relevant adjustments to the rules that regulate the departure from the country of persons with maintenance obligations, opening a new exceptional and conditional way to authorise travel abroad without weakening the protection of the rights of persons receiving maintenance.

The initiative proposes to reform article 261 of the Family Procedural Code and to incorporate a new article 261 bis, with the aim of making the current regime more flexible without eliminating the immigration restriction that weighs on those who owe judicially fixed maintenance.

Currently, the regulations require that all maintenance debtors must have the creditor's authorisation to leave the country or, failing that, guarantee payment of the maintenance for a full year, including such things as Christmas bonuses, school salaries or expenses for the start of the school year. This control is reinforced by the Registry of Persons Obliged to Pay Maintenance, administered by the Judiciary in coordination with the General Directorate of Migration and Foreigners.

"The bill does not eliminate the immigration impediment, but introduces an additional, strictly regulated alternative, aimed at balancing the fulfilment of the maintenance obligation with personal or professional situations of the maintenance debtor that require his or her temporary departure from the country", explains Mario Umaña, a lawyer and expert in Family Law at ECIJA Costa Rica.

The new article 261 bis would allow requesting a temporary judicial authorisation to leave the country, provided that specific requirements are met. Among them, the reason for the trip - be it for work, study, health reasons or due to serious illness or death of a relative up to the second degree of consanguinity abroad -, being up to date with the payment of alimony and having fulfilled the obligation uninterruptedly for at least two years since it was fixed.

"This mechanism introduces greater control filters: only those who have demonstrated, over time, uninterrupted compliance with the maintenance obligation would be eligible. This is not an automatic authorisation, but a judicial assessment on a case-by-case basis," Umaña explains.

The bill also provides for differentiated treatment for pensioners. When the maintenance contribution is deducted in its entirety from the old age or disability pension, the debtor would be exempt from the immigration impediment. In cases where the deduction is partial, the possibility of requesting the lifting of the impediment would be enabled under the rules of the new Article 261a.

Requests would be processed within the same court file where maintenance was fixed, which would allow for a more streamlined handling by the competent courts.

"Although the proposal introduces greater flexibility, its practical application will be decisive. The challenge will be to ensure that these authorisations do not become a risk for the effective fulfilment of maintenance obligations, which continue to be centred on the protection of the beneficiary", concludes the ECIJA Costa Rica specialist.

If approved, this reform would mark a relevant adjustment in the balance between immigration control and maintenance responsibility, the impact of which should be carefully evaluated in judicial practice.

Should you require further information on this issue, please do not hesitate to write to: hola.costarica@ecija.com