new Civil Code subverts marriage

The latest report for the draft of the new Civil Code, which will soon be processed in the Senate (read the full document), includes provisions that could redefine the institution of marriage in legislation, going far beyond even the controversial recent decisions of the Federal Supreme Court (STF) in this context.

This week, in an interview with the website UOL, lawyer Flavio Tartuce, rapporteur of the draft, made clear the proposal’s intention to promote greater “fluidity” in relationships, facilitating marriage and divorce processes. “Relationships today are more fluid. If we facilitate divorce, we have to facilitate marriage, reducing time and costs. One of the objectives of reforming the Civil Code is to unlock people’s lives”, he stated.

One of the provisions that most worries some jurists is article 1.582-A, which introduces the possibility of unilateral divorce by the registry office without prior control by the Judiciary. This innovation would allow one party to dissolve the marriage without the consent and even without the presence of the other – which would make the dissolution of the marriage easier than, for example, breaking certain commercial property leases.

Regina Beatriz Tavares da Silva, president of the Family and Succession Law Association (Adfas) and PhD in Civil Law from USP, considers the search to facilitate bureaucracy in marriage and divorce processes understandable, but emphasizes that “it is necessary to consider the consequences of exaggerated facilitation”. She sees the possibility of unilateral application to the registry office, present in article 1.582-A of the proposal, as especially dangerous. For her, the device could be called a “surprise divorce”.

“This proposal, if not modified, will cause countless losses to the notified spouse, who, among other examples, may be immediately excluded from the insurance or health plan existing with the divorce applicant’s employer, simply by presenting the marriage certificate with registration of the divorce, as well as being suddenly expelled from the marital home, if the property belongs exclusively to the notifier”, he states. In some cases, she points out, the spouse might not even have time to seek legal assistance and take the appropriate legal measures to maintain the health plan and remain in the property.

For the jurist, the pretext that the device would be a way of favoring women whose husbands do not want a divorce is a fallacy. “When we talk about protecting women who are unable to divorce as a justification for this proposal, this, with all due respect, is a fallacy, because women who suffer domestic violence need the protective measures of the Maria da Penha Law and not divorce for notification at a notary’s office”, he says. Regina assesses that divorce by unilateral request in the system in force in the Civil Code is already “sufficiently facilitated”.

Confusion of concepts in the draft Civil Code could facilitate legal recognition of polyamory

Regarding the possibility of polyamorous unions, raised by this report from People’s Gazette, Regina observes that the draft confuses the concepts of “conjugal society”, “cohabitational society” and “stable union”, in addition to not clearly defining what a “non-marital family” is. This lack of clarity could result in misinterpretations.

On the one hand, at one point, the proposed laws define marriage and stable unions as family formations made up of just two people, highlighting the importance of monogamy as the basis of these relationships; in most of the text, conjugal society is synonymous with marriage, and cohabitational society is synonymous with stable union.

However, highlights Regina, article 1,702 of the draft cites the conjugal society, the cohabiting society and the stable union as three distinct entities. Therefore, she states, the coexistence society could be mistakenly interpreted “as encompassing other arrangements that are not family”.

For the expert, it is also necessary to make the difference between two types of family mentioned in the laws clearer: families formed by couples (conjugal) and those formed by people who are not couples, such as siblings or friends who decide to live together (non-conjugal). ). This distinction is important to avoid, for example, that non-marital families can be seen as polyamorous relationships.

“It is necessary to improve all the provisions mentioned, otherwise the door of family law will be opened to relationships that are not recognized as family entities by the Federal Constitution and by the theses of general repercussion of the Federal Supreme Court”, he concludes.

Summary of proposals made by jurists for the new Civil Code

The PDF file below contains a summary of the main changes proposed in the draft of the new Civil Code in matters related to the person, life, family and marriage. Check out: