1. What is a stable union?

It is the union between man and woman that is configured in public, continuous and lasting coexistence with the objective of starting a family, in which the duties of loyalty, assistance, respect, custody, support and education of children are applied. Currently, there is no distinction between homo-affective and hetero-affective deeds of common-law marriage, referring to both as deeds of common-law marriage.

2. What is a homoaffective stable union?

It is a union between two people of the same sex, whose status as a family entity was recognized by the Federal Supreme Court, on 05.05.2011, in the context of ADPF No. 132 and ADI No. 4277, guaranteeing this union all rights and guarantees attributed to heteroaffective unions, provided for in § 3, of art. 226, of the Federal Constitution and art. 1723, of the Brazilian Civil Code.

3. How is the stable union formalized?

The common-law marriage can be formalized through a declaratory public deed drawn up at the Notary Public's Office.

4. What can be regulated in the public deed of stable union?

The parties can declare the date of the beginning of the coexistence, the property regime that will govern the referred union and guarantee rights before the INSS, medical agreements, etc. It should be noted that, when one of the cohabitants is over 70 (seventy) years of age, the mandatory separation of assets regime must be adopted (art. 1641, item II of CC/02), according to the jurisprudence of the Superior Court of Justice and Law 12,344/10.

5. Can married people live in a stable relationship?

Yes, as long as the married person is actually separated. The exception to the rule is provided for in § 1 of art. 1723, of the Civil Code of 2002, which allows the drawing up of a deed declaring a common-law marriage, when one of the declarants is married, but, in fact, separated from the other spouse.

6. What are the requirements for common-law mining?

The law does not require a minimum period for the duration of coexistence, nor that the couple live under the same roof, it is enough that the union be public, continuous, lasting and with the intention of starting a family, and interested parties must appear in a registry with a CPF ID and declare the property regime applicable to the union.

POLYAFFECTIVE UNION. WHY NOT?

By Fernanda de Freitas Leitão – Notary holder of the 15th Notary Office of the Judicial District of Rio de Janeiro.

Not long ago, we came across a story on the cover of the newspaper “O Globo”, which, I believe, shocked almost everyone, gentlemen, young people, gays… The bombastic news said:

"São Paulo notary public registers stable union of three people." [1]

I started to ask myself: why is this type of news, in the 21st century, still causing so much furor, so much indignation and so much revulsion in our society? Christian morals? Afraid of the new?

In fact, nothing allowed these unions to happen. We didn't invent them, they simply always existed in our society; however, there was no visibility that this polyaffective union, formalized by means of a public deed, in Tupã, is having, since, in this case, the aforementioned union was expressed and registered in a notary's office and was published on the front page of a very high-ranking newspaper circulation.

Unfortunately, I did not have the opportunity to read it, nor was I approached to draw up the controversial deed. But, basically, what I can tell you is that the public instrument drawn up in Tupã did nothing more than determine property and conduct rules, establishing a de facto society among the participants, even pleading for its future recognition as a family entity.

The Family Law, after the promulgation of the Constitution of the Republic, of 1988, is going through a moment of great effervescence, there was a serious and profound change of paradigm. Before the 1988 Constitution, the Law protected the institution of marriage (art. 175, EC 1/69), ignoring other types of unions, even the male/female stable union. After the advent of the new Constitution, the guiding principle of Family Law became AFETO.

Suffice it to say that, nowadays, our legislation and our Judiciary understand as a family entity the single-parent family, the anaparental family, the mosaic family, the single-person family (STJ decision), the stable union, now, after the historic decision of the STF, without further distinction between homo and hetero, affiliation by affectivity, among others. In other words, the master base of these relationships should be affection.

In my understanding, any group could make a union like this - ie, one man and two women, one woman and two men, three men, three women -, provided that some assumptions contained in art. 1723, of our Civil Code, such as, for example: to be public, to be continuous, to be lasting (there is no time limit), to present the objective of starting a family, not to present matrimonial impediments, contained in art. 1.521 (eg, ascendant cannot marry a descendant), also from the Civil Code.

Now I ask you: why not recognize the polyaffective union as a new form of family entity, if all the prerequisites for this are present? Affection, lasting relationship, mutual respect, purpose of starting a family, no impediment provided for in art. 1.521, of the Civil Code. Is there any law that prohibits it?

Definitely not. There is no law that prohibits this type of union. In addition, it should also be noted that, under private law, what is not prohibited is allowed.

And now? How will the Supreme Court stand after it has granted same-sex unions the status of a family entity? For the reasons that gave rise to the celebrated judgment are exactly the same (ubi eadem ratio ibi idem ius).

Let us see, then, briefly, the foundations of the historic decision: a) prohibition of discrimination (male/female, sexual orientation); b) fundamental rights of the individual, autonomy of will; c) prohibition of prejudice; d) normative silence – negative general rule – according to which, what is not legally prohibited, or obligated, is legally permitted; e) principle of human dignity (right to seek happiness and right to sexual freedom); f) non-reductionist or orthodox interpretation of the concept of family; g) interpretation of art. 1723, of the Civil Code, according to the Constitution of the Republic.

Despite considering myself an extremely optimistic person, I am convinced that, at this first moment, our Judiciary will not recognize polyaffective union as a family entity, but only as a de facto society.

As a matter of fact, the theory of society in fact, from the beginning, was widely used to settle family conflicts. At first, the male/female stable union was not conceived as a family entity. And how did the judges decide? They decided exactly on the basis of the theory of de facto society, the formation of common patrimony and subsequent division, prohibiting illicit enrichment, with the application of the ancient Precedent 380, of the STF. These actions were directed to the Civil Courts.

This same theory was applied to stable homoaffective unions, when they were not yet recognized as a family entity, applying the same treatment to them.

I have no doubt that the polyaffective union will cover this same arduous and long path, until reaching its recognition as a family entity, which, in my opinion, will be inevitable.

The world has changed and changes at every moment, the marriage form has given way to essence – affection –, which, in fact, is the instrument for the promotion of human personality. People seek happiness, I am not referring here to romantic happiness, but rather to happiness according to Aristotle.

The Greek word eudaimonia, which translates to happiness, in our language, has a different meaning as we know it. According to the philosopher of Stagira, eudaimonia means the highest among all goods that can be obtained by action. Therefore, it follows that eudaimonia is achieved when the active exercise of the faculties of the human soul is carried out in conformity with virtue.

Let's all be happy!

Fernanda de Freitas Leitão

[1] Jornal O Globo, article published on 23.08.12, by Dório Ewbank Victor.

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