Despite not being a lawyer passionate about family law, this is a very popular area of law, which invariably affects all of our lives, after all, everyone has dated, been "friended" with someone else and was left in doubt. on the rights arising from this relationship.
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Beyond curiosity, it makes perfect sense to worry about your rights and assets. Who has never heard of a friend who invested time, money and affection in a relationship that one day ended and the friend left with one hand in front and the other behind? It's natural to have a certain fear of getting involved and "wasting your time". Of course, with the end, we always take something from the relationship. And it's not just the memories. Depending on the type of relationship, you may have rights to some assets.
After being approached by many people with doubts about the implications of a stable union, marriage and the differences between the two, I think it is worth spending an article to talk once again about the topic. In today's article, I want to explain all of this and make it very clear, above all, that dialogue is the best way to deal with the topic.
First, let's understand the difference between a stable union and marriage. Both things are ways of starting a family. While marriage is a more "official" form, stable union is a de facto situation. I mean, even if you don't go to the registry office to register your stable union contract, you could be living in one. This doesn't exist with marriage. If you don't sign that paperwork, you can't be considered married.
In relation to property rights, a stable union, when not registered, gives almost the same rights as marriage under a regime of partial community of property, that is, all the assets acquired through the sweat of the couple during the union are the property of both and only can be sold if both parties agree. When the relationship ends, each person is entitled to half of these assets.
It is important to understand that the law presumes that all the assets acquired during the stable union were the product of the sweat of the two partners, so it doesn't matter if you did household chores or if you were the one who left the house to make money. Both contributed, albeit in different ways, to the good of the family. It is very curious to note that many people don't even know that they are entitled to half of the assets built during the union and end up leaving, in fact, with "empty hands", which I consider very unfair, after all, if it weren't for the "house owner" who took care of the home and provided emotional support, I'm sure that someone who invested in their career and made money would not have built such wealth.
If the provider were to pay for "domestic services", just imagine how much they would not spend? Nowadays it's not cheap to add expenses for a maid, psychologist, accountant (or someone to take care of the finances), personal stylist, babysitter for your children, etc. Ignoring the fact that the "house owner" acts as all these professionals is an immense disrespect to this person's self-abdication for the couple, for their mutual life project. Therefore, the law forces equality between the parties, even if they do not prove their contribution to the construction of common heritage.
Furthermore, the ex-partner can also claim the right to alimony in court, precisely in compliance with the duty of mutual support mentioned in the paragraph above. If the beneficiary, however, starts a new family, he loses his right to the pension. To obtain it, he must prove that he needs this "cost assistance" and that he is unable to support himself – or at least the same previous lifestyle – alone.
If they have had children, ex-partners can also claim the right to custody of the minors, or even the right to regulate periodic visits, so that the breakup between the parents – no matter whether adoptive or biological – does not hinder the development of their children. affective relationships with their children.
Not only do rights arise with termination. With the death of one of the partners or one of the spouses, patrimonial rights also arise, which is the transfer of the assets of the "deceased" to the survivor. When you are married or have a stable union registered with a registry office, you save yourself a lot of headaches, as there is already certainty that the couple constitutes a family.
When the couple lived informally – in a de facto stable union – it is necessary to go to court, file an action for recognition and dissolution of the stable union. And here those huge fights happen with distant family members who didn't even accept the dead man's homosexuality. To avoid the stress and hassle of fighting with these distant relatives, the best thing is to register the stable union with a notary.
The action to recognize and dissolve a stable union is always very stressful for the party, who needs to prove through documents and witnesses that they lived together and shared a life. This can be a problem, especially for gay couples where one spouse or partner is closeted. The problem is also present in relationships between elderly people in the closet, which is not at all rare, since, coming from more intolerant times, they formed their unions in camouflage to escape discrimination. As one of the requirements of a stable union is publicity, that is, that the relationship is not hidden, gays can often be unfairly treated after their stable unions, during the process.
To avoid these injustices, unfortunately there is no miracle. The best solution for couples is to maintain a frank and horizontal dialogue. No one is forced to share assets if they don't want to and, for this, there are other property regimes (such as total separation). At the same time, it is not fair for anyone to be completely helpless when the relationship ends – whether because of the breakup or because of death. It is better to leave the union registered, preventing any fatalities, than to go through the wear and tear and uncertainty of the Judiciary.
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 the area of legal philosophy on homophobic hate speech; he also founded and currently coordinates Geds – Study Group on Law and Sexuality at the USP Law School; and writes biweekly about Rights on the portals A Capa and Gay Brasil. www.rosancoimbra.com.br/direitolgbt
