Aline Cavalcante de Souza Sanches
Lawyer at Marcos Martins Advogados
In the judgment of Extraordinary Appeal No. 1.045.273/SE, which began on Friday, December 11, 2020, the Federal Supreme Court established the thesis transcribed below, in the context of general repercussion, focusing on the possibility of recognizing a new stable union, by a person who already has a previous marital relationship:
“The pre-existence of marriage or stable union of one of the cohabitants, with the exception of article 1.723, paragraph 1, of the Civil Code, prevents the recognition of a new bond referring to the same period, including for social security purposes, due to the consecration of the duty of fidelity and monogamy by the Brazilian legal-constitutional order”
It is worth highlighting the importance of the general repercussion attributed to the matter, which means that the judgment presents relevant issues from a social and legal point of view, going beyond the subjective interests of the case, thus affecting all lawsuits that deal with the same issue.
In the specific case brought before the Federal Supreme Court, an individual who had an existing stable union, which had already been recognized, had a new request for recognition of a concomitant homosexual stable union, with the second partner seeking the division of the amounts resulting from the death pension.
In a nutshell, the discussion is about whether it would be possible for a person who is married or in a stable union, to consolidate a new bond, in a parallel relationship, constituting another family entity, with this second communion having the force of a stable union, for inheritance, social security and property sharing purposes.
Thus, the Federal Supreme Court defined whether the existence of simultaneous relationships was legally possible, either because of a marriage, concomitant with a subsequent stable union, or because of two parallel stable unions, one formed after the other.
The judgment by the Supreme Court was controversial, with the Justices not reaching a consensus, and the fierce decision was closed by six votes to five, with the opinion of the Rapporteur Alexandre de Moraes prevailing.
The winning thesis, defended by the Reporting Justice and joined by five other judges, states that it is not possible to recognize simultaneous stable unions, based on the fact that the Brazilian legal system, in the area of family law, is governed by the principle of monogamy and the duty of fidelity, which are absolutely incompatible with granting legal status to two concurrent stable unions, so that this second relationship should not be legally classified as a family entity.
The vote of the Reporting Justice concluded that “the existence of a judicial declaration of the existence of a stable union is, in itself, an obstacle to the recognition of another union established in parallel by one of the partners during the same period, since article 226, § 3, of the Constitution is based on the principle of exclusivity or monogamy, as a requirement for the legal recognition of this type of affective relationship inserted into the current family mosaic”.
Therefore, it was decided that, even if the second relationship fulfills the legal requirements for the constitution of a stable union, which are the existence of a public, continuous and lasting relationship, with the intention of starting a family, it cannot be recognized in this way, given the pre-existence of marriage or stable union, which prevents the recognition of a new bond, given the duty of fidelity and monogamy in force in the Brazilian legal-constitutional order.
On the other hand, in an unsuccessful vote, Justice Edson Fachin defended the approval of the following thesis: “it is possible to recognize posthumous social security effects for concomitant stable unions, provided that the requirement of objective good faith is present”.
In other words, it claimed that as long as the partner resulting from this second relationship was acting in good faith, he or she could have social security rights after death, a thesis that did not prevail in the judgment of Extraordinary Appeal No. 1.045.273/SE.
Marcos Martins Advogados is attentive to issues involving Family and Succession Law, applying the most contemporary case law and Civil Law institutes, ready to help you resolve disputes in this area.
