12/29/2020
In a tight score, the Brazilian Federal Supreme Court (STF), by 6 votes to 5, denied the recognition of simultaneous stable unions, in the judgment of Extraordinary Appeal No. 1,045,273.
On that occasion, the appellant filed a request for recognition of the same-sex stable union, combined with a request for declaration of social security effects, in the face of a deceased person.
The requests were upheld at first instance, but the Sergipe Court of Justice reformed the sentence. This is because, he understood that, although there was a stable union, the applicant could not be a beneficiary of the death pension, because the deceased had another pre-existing and simultaneous stable union with a third person. Against this decision, the unsuccessful party appealed to the STF.
When considering the appeal, the Reporting Minister noted that the stable union consists of a de facto or presumed marriage, and the legal system prohibits the State’s recognition of a stable union concomitant with a marriage.
The Minister also stressed that Brazilian law would be governed by the principle of monogamy, so that “the existence of a judicial declaration of the existence of a stable union is an obstacle to the recognition of another union paralleled by one of the partners during the same period” .
On the other hand, another Minister stated that the objective good faith of the surviving companions was evident, who were unaware of the concomitance of stable union relations, which is why the death pension should be guaranteed by apportionment.
The trial brings to light the legal effects, especially social security, of the simultaneous existence of two or more family nuclei in several cases.
In addition, the decision goes in the opposite direction to recent state court judgments admitting, albeit exceptionally, the existence of concurrent unions.
The tight score of the trial and the constant changes in family conceptions demonstrate, beforehand, that the discussions on the subject in question are far from exhausting.
Coauthors: Ulisses Simões da Silva and Harumi Pinheiro Hioki
