Family Law and Constitutional Rights in Brazil
1. Family Protection under the Constitution
Articles 226 to 230 of the 1988 Constitution support family law, emphasizing principles like household diversity, gender equality (with shared rights and obligations), facilitated divorce, responsible parenthood, and family planning. These principles stem from the core value of human dignity. A significant shift recognizes the family-centered marriage “as a true web of solidarity, affection, ethics, and values.”
2. Gender Equality under the Constitution
Following the principle of equality before the law, the Constitution prohibits gender discrimination. Article 226, paragraph 5, specifically addresses the marital relationship, stating that “rights and duties shall be exercised equally by men and women.” This eliminates patriarchal power and replaces the traditional head-of-household model with joint decision-making between spouses.
3. Divorce and its Modalities
Divorce, the legal dissolution of a valid marriage, allows remarriage. The Federal Constitution and the Civil Code (Article 1580) outline two types: direct and indirect (conversion) divorce. Indirect divorce occurs one year after a legal separation decree or a protective order granting separation. It can be contested or consensual. Direct divorce, also contested or consensual, doesn’t require explanation of the separation cause. Consensual divorce follows the same procedure as consensual separation, addressing proof of separation time, spousal support, and asset division, which cannot be discussed separately as in legal separation.
4. Debtor’s Prison for Child Support
Civil imprisonment for child support aims to compel payment, not to punish. It’s a coercive measure used when the debtor has the means to pay but refuses. While Article 733, § 2 of the Civil Code mentions “penalty,” it’s not punitive. This imprisonment applies only to alimony as defined in Articles 1566, Section III, and 1694 of the Civil Code. Only the child’s guardian or legal representative can request it. If the child is represented by a parent, the debtor’s imprisonment can still be decreed.
5. Name Preservation after Divorce
In legal separations (based on fault, de facto separation, severe mental illness, or the “unbearable communal life” clause of Article 1573 of the Civil Code), the winning spouse can choose to retain the adopted surname or relinquish it, either at the time of separation or later (Article 1578, § 1). In indirect divorce, the agreement made during separation applies. In direct divorce, either spouse can choose to keep the adopted surname (Article 1578, § 2 combined with Article 1571, § 2).
6. Determining Alimony Amounts
Alimony amounts vary based on individual family circumstances. For employed individuals, it’s typically a percentage of their income (e.g., 20% for one child, 30% for multiple children). For self-employed or informal workers, the amount is fixed and subject to annual review and adjustments based on the payer’s economic situation. The court considers the child’s needs and the payer’s reasonable capacity.
7. Stable Union
A stable union is a non-adulterous, non-incestuous, durable, and public cohabitation between unmarried man and woman, living as if married, whether under the same roof or not, thus constituting a de facto family. Impediments to marriage (Article 1521 of the Civil Code) don’t apply, except for Article VI if one partner is legally or de facto separated. The requirement of uxorius (coexistence identical to marriage) is embodied in Summary 382 of the Supreme Court.
8. Homoaffective Union and Same-Sex Marriage
The Supreme Court’s 2011 ruling legally recognized homoaffective stable unions, granting same-sex couples the same rights as heterosexual couples (pension, inheritance, shared property, and welfare). This decision also facilitated adoption by same-sex couples and paved the way for anti-homophobia legislation like PLC 122.
9. Paternity Investigation
Paternity investigation is a personal and inalienable legal action initiated by the child against the alleged father or mother (Article 1606, Civil Code). It follows ordinary procedural law and is declaratory. The child, their representative, or heirs can file the action. The defendant is the alleged parent or their successors. The prosecutor can also initiate the action due to the public interest. Acknowledging paternity has the same effect as recognizing the child (Article 366 of the current Civil Code and Article 1616 of the New Civil Code), requiring registration in the Civil Registry. This declaration confers rights and duties related to paternal power. Paternity investigation can be combined with inheritance claims, alimony requests, and civil registration annulment actions.
10. Guardianship
Guardianship provides legal assistance and representation to minors lacking family support due to parental death, absence, or loss of parental rights. It’s called “representation” for those under 16 and “assistance” for those aged 16-18. Guardianship can also apply to individuals over 18 who, due to illness, disability, or other lasting conditions, cannot manage their affairs. This includes individuals with mental disabilities, those without full mental development, drug addicts, habitual drunkards, and those with compulsive spending habits.