The existence of a common law marriage – or its termination – does not depend on the execution of the corresponding written agreement or public deed, nor on its registration before a public notary.
However, the execution of a common law marriage agreement can bring several benefits to the parties involved, such as: (i) the possibility of including the companion as beneficiary of a health insurance and/or social security plan; (ii) the possibility of choosing the marriage regime; (iii) the alimony rights and the right to the family name; and (iv) enforceability against third parties.
As such, and as a result of the entry into force of Law No. 14.382, dated 06.27.2022, the National Council of Justice (“CNJ“) published, on 03.16.2023, Provision No. 141/23 (“Provision No. 141/23“), which aims to facilitate the procedure for recognition and dissolution of a common law marriage, as well as for its conversion into marriage and the modification of the applicable property regime.
Provision No. 141/23 regulates the procedures for recognition of a common law marriage – or its termination – upon a statement signed by the parties before any Civil Registrar (“Cartório de Registro Civil”). By means of such statement, the companions may regulate all rights and obligations regarding the common life, admitted by law, including the adoption of a property regime.
It is worth clarifying that, in the hypothesis of existence of a previous document executed between the companions, the execution of a new written statement in this regard is not admitted. Thus, it is essential that the written statement contains an express warrant of inexistence of any previous document in this regard.
Provision No. 141/23 also establishes the procedure for recognition of common law marriages formed abroad, when at least one of the companions is a Brazilian citizen.
It is important to emphasize that cases involving unborn or incapable children, the termination of the common law marriage shall only be valid upon authorization of the competent Court of Justice.
In regard to the conversion into marriage, the same property regime governing the common law marriage shall be kept, except if otherwise established in the prenuptial agreement.
Therefore, Provision No. 141/23 made it easier for companions of common law marriage to benefit from its recognition.
