Family Law

Considerations about stable union in Brazil

Is it possible for same-sex marriage or stable union?

Yes. Although not provided for in the Federal Constitution and the Civil Code, civil marriage and the stable union between persons of the same sex are supported by decisions of the Federal Superior Court (STF) and in a resolution of the National Council of Justice (CNJ) that prevent negative decisions of the charters from enabling, celebrating civil marriage or converting from stable Union into same-sex marriage.

Homo-affective relations, in the same way, are considered as stable unions when they meet the criteria laid down in the legislation, that is, when they are characterized as public, continuous and lasting coexistence and which seeks to be a family constitution. With that, the rights of homosexual couples are the same as those of heterosexuals.

What is it important to define when to formalize marriage or stable union?

One of the most important issues concerns the choice of the property regime to which the relationship will be submitted, a decision that will impact directly on how the eventual sharing will be done, in case of termination of the bond.

Is changing the name possible both in marriage and in stable marriage?

Yes. Although the law only expressly mentions the possibility of including the spouse’s surname (i.e. in marriage) the Superior Court of Justice (STJ) has already recognized that partners in stable union also have this right. However, the inclusion of the last name of the companion is only possible if the stable union has been declared in a public document (Court judgment or public deed) and if there is agreement of both.

Does the stable union need to be registered in court? In what cases is this advisable?

A stable union is a situation in fact, not requiring formal registration of its existence. However, if it is in the interest of the couple, it is possible to formalize the Union by means of a public deed in the office. For this, it is sufficient for the parties to appear in the court with their personal documents, and the presence of lawyers is not necessary. The registration of the stable union may be important for the couple in situations such as the inclusion of dependents in health plans and life insurance, as well as documenting the date of commencement of the Union.

What are the rights of those living in a stable union?

The stable union is recognised as a family entity, as is marriage. For this reason, it guarantees the parties the same rights and duties provided for in marriage (that is, mutual Fidelity; common life; mutual assistance; maintenance, custody and education of the children; and mutual respect and consideration). As for the system of property, the stable union is based on the system of partial communion. If it is in the interest of the couple to define another regime for the Union, such as universal communion or universal separation of goods, it is possible to formalize a contract in a court of law between the parties, which is equivalent, in this case, to the prenuptial agreement concluded in the marriage.

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