Action in the STF tries to prevent legal opening for the “coup do baú”

When facilitated, marriages with seniors over 70 years old can constitute fraud. After all, it is necessary to take into account the real intentions of the spouses when one of them is close to life expectancy in the country, which, according to the Brazilian Institute of Geography and Statistics (IBGE), is 77 years.

Even so, there are initiatives under way, in the Judiciary and in Congress, which seem to have the objective of facilitating this relationship profile – in other words, favoring the legal validity of the so-called “coup do baú”. The main one of these measures is article 94-A of the Public Records Law (LRP), introduced by Law 14,382 of June 27, 2022, in the form of an amendment, without due legislative debate.

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Until the emergence of this new law, it was exclusively up to the Notary Public, who has the duty to verify that the will of the parties is free and spontaneous and to celebrate the term of stable union. In the case of minor children, the judicial process of homologation of the agreement made by the cohabiting partners was also mandatory, always with the assistance of a lawyer, according to art. 733 of the Code of Civil Procedure.

Now, a civil registry office, which does not have the specialty of formalizing will agreements, as provided for in the legislation regulating public notary service agents, now has the competence to collect the signature of cohabitants on simple forms, which can be changed by complete the rights of the parties without due free and informed consent.

“This legislative change authorized the formalization of declaratory terms of the existence of a stable union and is being unduly interpreted as also authorizing the formalization of terminations of stable unions before the Civil Registry of Natural Persons (RCPN)”, explains Regina Beatriz Tavares da Silva, president of the Family and Succession Law Association (ADFAS).

In reaction to this measure, ADFAS filed, in October 2022, a Declaratory Action of Unconstitutionality against this rule, ADI 7260. With the measure, the association asks the Federal Supreme Court (STF) to declare the unconstitutionality of this provision. “It is unconstitutional the norm that authorizes the realization, by mere form completed in a civil registry office, of the declaration of the existence of a stable union, setting its initial term and even choosing a property regime different from that provided for in the legal order, which is the of the partial communion of goods”, says Regina.

stable union

The president of ADFAS recalls that a stable union has the same effects as marriage in the dissolution in life or by the death of one of the cohabitants, except for the necessary or obligatory inheritance, which only exists in marriage. “It shouldn’t be like this. A stable union, which is a purely factual situation and with lax legal requirements for its configuration – which do not even require living under the same roof, nor a period of duration – should not produce the same legal, patrimonial and personal consequences of an act solemn as that of marriage. But, given this equalization of effects, the same protection that is given to marriage must be given to a stable union, ”she argues.

She reinforces that in the systematic interpretation of the Civil Code, a stable union pact, as well as a pact prior to marriage, in which the property regime is modified, can only be drawn up in a notary office. This is because this is the department that has the competence and attributions to verify the free and spontaneous will of the parties and formalize it, unlike a civil registry office, which has another attribution, limited to registering these pacts.

In ADI 7260, ADFAS also asks for the interpretation according to the Federal Constitution of the newly added section to the Public Records Law regarding the formalization of the declaration of termination of the stable union, the so-called termination. “This is because the Association of Natural Persons Registrars (Arpen Brasil) incorrectly interprets this article, as if this device authorized the civil registry officer to formalize the declaration of extinction of the stable union when the norm does not allow the Civil Registry of Natural Persons to practice of this act”, explains the lawyer.

“It is evident the legal uncertainty that will entail the recognition of the existence and dissolution of the stable union by mere form in the civil registry office, without the presence of a lawyer and the Public Prosecutor’s Office”, says Regina.

In addition to the “trunk coup”, a measure facilitates other violations

The action presented by ADFAS seeks to protect families from a common situation in which one of the partners proposes to the other to go to a civil registry office – without the presence of a lawyer, that is, without legal assistance – to fill out a union form stable. “In the blink of an eye, the property regime of this stable union could become one of total separation of property when, until then, it was of partial communion of property. Or, from a regime in which only goods acquired onerously during the stable union are communicated, the cohabitants can start to have all the goods in common, those prior to the beginning of the relationship and even those arising from inheritance”, warns Regina.

Another frequent case occurs when dating couples use the common-law marriage form at a civil registry office to unduly obtain social security or private medical assistance benefits, or for one of them to join a sports club as a dependent, for example.

“It’s all very easy and fast, with immense advantages, without the proper information that would certainly be provided at the notary office, that they could not draw up the public deed because they do not experience a family entity”.

“This undue attribution of competence to civil registry offices causes immense legal uncertainty and will certainly lead to greater judicialization”, evaluates Regina. “Undoubtedly, the cohabitants who are led to mistake in formalizing such terms of stable union will promote lawsuits to declare their invalidity”.