8/31/2020
Since the beginning of the pandemic, people have had their lives and routines changed due to stay-at-home measures recommended by the World Health Organization.
As one of the outcomes of this new reality, many couples decided to face this period of adversity moving in together and, in some cases, sharing all the household expenses.
Although this scenario can be understood only as cohabitation – also known as “qualified dating” – couples have shown great concern about the risks of their dates turning into common law marriages (“CLM”), with all the legal effects resulting from it, especially the sharing of assets.
According to Article 1.723 of the Brazilian Civil Code, a common law marriage can be recognized as long as the relationship is public, continuous, lasting, and established to build a family. Other elements may also be analyzed, such as cohabitation and the financial dependence of one of the partners.
Therefore, there is a grey area between qualified dating and common law marriage, since the requirements listed by Brazilian law are rather subjective and may give rise to different interpretations, depending on the circumstances of each case.
Thus, the so-called “Dating Contract” can be an effective tool to attest that the couple only have a casual relationship and has no intention of building a family (a feature of common-law marriages only). This avoids the recognition of a common-law marriage and its property effects deriving in the event of a breakup.
Besides, there is a corporate reason for signing the Dating Agreement, because many of them are signed by widowed or divorced couples, who are shareholders of family holdings and have already planned their succession. The unexpected entrance of third parties in this corporate/family structure could bring conflicts, either for family members or business management.
To avoid such a scenario as much as possible, shareholders’ agreements could also constitute an interesting tool to be counted on by wealth families, not only to bind the election of the regime of full separation of assets, for marriages or common-law marriages of family members, but also the signing of the Dating Contract, targeted at couples who are together but do not have intention to form a family.
Finally, we emphasize that although Dating Contracts provide greater security to the couple, they will only be effective if they reflect the reality of the relationship. For this reason, their execution, by itself, will fail to turn a common law marriage into a dating relationship.
Coauthors: Marcelo Trussardi Paolini e Maria Paula Meirelles Thomaz de Aquino
