03/7/2024
Nowadays, the variety of titles that a romantic relationship can take on is huge: marriage, common law marriage, dating, courtship and, more recently, the so-called “situationships”, expression used in the United States of America to refer to casual, undefined and commitment-free relationships.
A relationship’s title may seem of little – or no – significance to some people. However, from a legal point of view, its definition is extremely important, especially if the legal effects are considered.
For example, on one hand, a relationship qualified as “Namoro Qualificado” does not generate property consequences in Brazil, which means that, in the event of separation or death/succession, neither party will be entitled to the other party’s assets.
On the other hand, the rule applicable to common law marriage is the opposite: depending on the adopted marital regime, an ex-companion may, in the event of separation, be entitled to a portion of the assets. In case of succession, the surviving companion will also be entitled to the deceased’s estate – or a portion of it – depending on the applicable marital regime and other circumstances, such as the existence of other heirs.
Well, the question seems to be quite simple then, right? Wrong. Despite the different titles and property effects, the difference between these types of relationship, in practice, turns out to be extremely subtle.
This is due to the fact that, in Brazil, the recognition of either a common law marriage, or of a dating relationship (“Namoro Qualificado”), does not depend on the execution of an agreement or of any other written document, nor does it depend on its registration or any other formality.
Both relationships, the dating and the common law marriage, can be qualified based on the parties’ intention to start a family, as well as on the presence of some legal requirements, such as the publicity and continuity of the relationship.
In that regard, the execution of a Dating Contract (“Contrato de Namoro”) can be an interesting alternative for couples who have no intention of forming a family, once it shall constitute additional evidence that may lead to the conclusion that the relationship under question was not a common law marriage.
Based on the above, the recent decision issued by the Paraná State Court of Justice (“TJPR”), under the lawsuit No. 0002492-04.2019.8.16.0187, confirmed that a certain relationship qualified only as a dating, based on the following arguments: (i) it is not mandatory that Contratos de Namoro be executed with a public Notary, except for purposes of enforceability before third parties; and (ii) in the case under analysis, the legal requirements that would qualify a common law marriage, were not met.
The TJPR’s decision therefore reinforces the validity and enforceability of Contratos de Namoro whenever common law marriages legal requirements are not present, regardless of the initial term of the relationship.
Co-authored by: Marcelo Trussardi Paolini, Isabela Rodrigues Alves de Sá e Silva e Luca Biafore Fernandes.
