On Saturday last week (29/03), the law establishing gay marriage in the United Kingdom came into force. In Brazil, same-sex union was finally recognized as a right for all in the historic judgment of May 5, 2011 by the Federal Supreme Court (constitutional court). Two years later, the Superior Court of Justice (infraconstitutional court) decided that gays could also marry, expanding the decision to all registry offices in our country through Resolution no. 175 of the National Council of Justice.
Today, therefore, LGBTs can both live in a stable union and get married, a right that we have been fighting for, in legislative bodies, for at least fifteen years, if we consider the bill by then federal deputy Marta Suplicy in 1995.
There are many benefits – and, why not, obligations – that we now benefit from. In this week's column, I will briefly reflect on the rights that people in stable unions enjoy.
First, the stable union is, first and foremost, a de facto situation. You don't need to go to the registry office to register it. However, some life situations require you to present this registration in order to take advantage of certain rights, such as the inclusion of a dependent in a health plan, as a life insurance beneficiary, etc.
The moment when, I believe, people are most likely to seek their rights is at the end of the union. Right now, they are worried about the emotional and financial instability resulting from the end of the relationship – and they are rightly worried.
If, unfortunately, the relationship ends, having a stable union contract already reduces a good part of the lawyer's work, who, without it, needs to prove in court that union in fact to, only then, enter into the merits of sharing the assets. One more reason in favor of making life as a couple official.
If the relationship has not been made official, it is important to know what elements actually characterize this situation. Proving them through legal action is the first step towards the subsequent sharing of assets.
To establish a stable union, therefore, the two people must have a public coexistence, that is, it cannot be a relationship between two lovers or a hidden relationship; this coexistence must be continuous, that is, despite the comings and goings, these instabilities cannot overlap the time of union; it must also be lasting, it cannot be too short (judges usually consider two years to be an acceptable minimum period); and the relationship must aim to create a family, regardless of having children, the relationship is not a relationship and the two want to share a life together.
We therefore move on to the next stage, which is the property regime. Well, whoever registers the stable union can decide on it and opt for one of the property regimes: put everything together in the "universal community of goods", separate everything in the "separation of goods", or create a mezzo the mezzo in "partial communion" – a regime that, in fact, prevails when the parties do not register the union (the vast majority of cases).
In partial community of assets, partners share the assets that were acquired during the relationship. As it would be very difficult to list all the most frequent examples, which already appear in article 1660 of the Civil Code.
And what is left out? The following assets are left out: those that each person had before the union; those that, even coming during the union, are inherited or the result of donation; those that were acquired exclusively with money from the sale of another private asset; debts prior to the union; the instruments used for the work; the income that each person has during the union; pensions and the like; other more unusual situations listed in article 1659 of the Civil Code.
Depending on the couple's situation, when there is economic dependence of one on the other (for example, when one gives up his professional life to take care of the house and children), it is also possible to request alimony, which will be quantified according to the need and possibility. In other words, there is no point asking for food if you already work and can maintain your previous standard of living on your own; There's no point in asking your ex for food if he earns little or much less than you.
Luckily, family law is considered the area of law most open to social changes and, perhaps for this reason, judges tend to prefer agreements that benefit and place the parties on equal footing. Therefore, far from being selfish or revanchistic, it is worth seeking your rights, whether during or after the end of the stable union.
Thales Coimbra is a lawyer specializing in LGBT law (OAB/SP 346.804); graduated from the Faculty of Law at USP, where he is currently pursuing a master's degree in legal philosophy on homophobic hate speech; founded and currently coordinates Geds – Study Group on Law and Sexuality also at the USP Law School; and is a columnist on Rights on the portals A Capa and Gay Brasil. www.rosancoimbra.com.br/direitolgbt
