Proposed Civil Code could give rights to lovers and open space for incestuous unions

Changes to the new Civil Code may give rights to lovers, according to the latest report for the preparation of the draft. One of the amendments presented explicitly wants to add that lovers have the right to housing, food and social security benefits. If approved, the suggestion could also facilitate the recognition of stable unions in incestuous relationships. The Committee of Jurists, installed at the request of the president of the Federal Senate, Rodrigo Pacheco (PSD-MG), must present the final text of the draft proposal in April.

The current Civil Code considers that “non-casual relationships between a man and a woman, prevented from marrying, constitute concubinage” (art. 1,727). The draft report wants to change the highlighted section to “do not constitute a stable union” (art. 1.564-D).

The art. 1564-D is, erroneously, listed twice in the final report presented by the Commission of Jurists. In the second part of one of the provisions with this number, it is stated that “if, during the coexistence, the facts that could have the effect of recognizing a stable union, were it not for one of the partners to be prevented from entering into marriage, remain undoubtedly proven. The judge may proceed with the division of assets acquired during this period, taking into account the common effort undertaken to acquire them.”.

Regina Beatriz Tavares, PhD in Civil Law from USP and president of the Family and Succession Law Association (ADFAS), believes that the text needs to be better written to make it clear that the obtaining of rights by lovers is not being considered. “The proposal must make it clear that it is to avoid undue enrichment. It also needs to be expressed that the effort must involve the delivery of capital, that is, money, or actual unpaid work in the other person’s professional activity”, she considers.

Still according to Regina Beatriz, current jurisprudence already recognizes that undue or illicit enrichment is prohibited. It provides for the calculation of the contribution made to another person’s assets, and how much can be requested. Therefore, the Committee of Jurists would need to present a text in a way that makes it clear that it is within the current understanding. The lack of clarity increases the chances of resuming the discussion about lovers having rights over the person who maintains the parallel relationship, an issue already discussed by the Federal Supreme Court (STF).

“In this STF thesis, it is written that ‘including for social security purposes’ the pre-existence of marriage or stable union prevents the recognition of a new relationship. This ‘inclusive’ is very important, because it shows that it also applies to other branches of law”, analyzes Regina Beatriz.

Amendment wants to generate benefits for lovers also in relationships during marriage

The text that could open up a new discussion about benefits for lovers could get even worse if the proposal for an amendment to article 1,517-D is approved. The suggestion seeks to make it clear in the Civil Code that relationships between “people prevented from marrying” and that are similar to a stable union must generate rights and obligations, including social security benefits and sharing of assets accumulated during the period of the relationship.

The amendment justifies that “it is time to end this protectionism for men who maintain parallel unions”. Still according to the justification, the concomitant family is harmed when compared to the family formed by a marriage under current legislation.

“This is a poor, misleading argument. A relationship parallel to a marriage or a stable union is a relationship of adultery. It is, as the STF said, a relationship that violates the principle of monogamy and the rule of fidelity”, states the president of ADFAS.

If approved, amendment text could recognize incestuous unions

The term “relationships between people prevented from marrying”, suggested by the amendment, may make the recognition of unstable unions in incestuous relationships more flexible. This is because the expression is in line with article 1,521 of the current Civil Code. The provision defines other situations that prevent the establishment of a conjugal union in addition to people already married, such as parents and children (whether natural or civil kinship), siblings, stepparents with stepchildren, the adopted child with the adopting child, among others.

“The amendment has another objective, by its own justification, which is to give lovers the right to a mancebia relationship. But, if we read about who are the people prevented from getting married and what is an impediment to marriage, it could even lead to this absurdity, in interpretative terms”, says Regina Beatriz.

“It is already absurd to acquire rights for lovers, it is even more absurd to grant family rights in an incestuous relationship”, concludes the jurist.

Commission of Jurists aims to follow consolidated understandings in the STF

A stable union has been considered a family entity since the promulgation of the Federal Constitution in 1988. Over time, the understanding of the effects of a stable union has been consolidated, and today they are considered similar to those of marriage. In 2021, the Supreme Court defined two important theses (529 and 526) on the subject, which protect monogamy as a structuring principle of the family unit, whether through marriage or stable union.

“In fact, the goal of the president of the Committee of Jurists, minister Luis Felipe Salomão, and the president of the Senate, Rodrigo Pacheco, is to follow the theses of general repercussion of the STF. This has been stated several times”, reiterates Regina Beatriz. The jurist explains that if the Legislature approves a rule that contradicts a thesis of general repercussion already defined by the Supreme Court, this rule must be debated again by the Court. And, if the ministers remain faithful to the established theses, it will be considered unconstitutional.

In the legal world, it is known that one of the rapporteurs of the Commission of Jurists, Flávio Tartuce, has already shown himself to be in favor of the idea that lovers have the same rights as spouses. In his book, “Civil Law: Family”, Tartuce comments on the decision of thesis 526 defined by the STF. When mentioning the case that generated the thesis, Tartuce writes that “certainly, the wife knew about the parallel relationship, accepting it for years on end. Therefore, she must, in the same way, accept the sharing of rights with the concubine, who must be treated, in the case under analysis, as a companion”.