The discussions and uncertainties regarding the legal validity of same sex marriages seemed to have been overcome since the Federal Supreme Court (“STF“) decision in this regard, in 2011, under ADI (Ação Direta de Inconstitucionalidade) No. 4277 and ADPF (Alegação de Descumprimento de Preceito Fundamental) No. 132.
Corroborating such trend, the National Council of Justice (“CNJ“) issued Resolution No. 175, of May 14th, 2013, which prohibited the competent authorities from refusing to authorize, execute, or convert a common law marriage between individuals of the same gender into a civil marriage.
In the opposite way, the Social Security, Social Assistance, Childhood, Adolescence and Family Committee of the House of Representatives approved, on October 10th, 2023, by 12 votes to 5, Project Bill No. 5,167/2009 (“PL No. 5,167/09“), which, in summary, intends to include same sex marriages prohibition in the Brazilian Civil Code.
However, PL No. 5,167/09 final approval is still subject to the discussion and voting of (i) the Human Rights, Minorities and Racial Equality Committee; (ii) the Constitution and Justice Committee; (iii) the House of Representatives plenary; and (iv) the Federal Senate. Lastly, it shall be subject to presidential sanction.
As it is not compliant with principles of individual freedom, equality, human dignity, and prohibition of discrimination based on origin, race, gender, color, age, and any other aspects (Article 3rd, IV and Article 5th, both of the Brazilian Federal Constitution), PL No. 5,167/09 is likely to be considered unconstitutional, and shall be unlikely approved, in a definite manner, by the National Congress.
PL No. 5,167/09 is, in itself, worthy of astonishment, but if it comes to be eventually approved and converted into law,, it should not have retroactive effects – that is: PL No. 5,167/09 should not apply to same sex marriages formalized before its publication.
The main concern should be regarding same sex marriages established after a possible approval of PL No. 5,167/09, cases in which the parties involved would not be entitled to certain rights such as inheritance and social security rights.
In any case, it is important to follow up on PL No. 5,617/09 because its eventual approval would directly impact family law and succession law, also affecting interpersonal relationships and wealth planning.
Co-authored by: Isabela Rodrigues Silva e Marcelo Trussardi Paolini.
