Brazilian legislation does not establish an express definition of “family”. However, Article 226 of the Brazilian Federal Constitution (“CF”) provides that the familiar entity may originate from: (i) kinship; (ii) marriage; or (iii) common law marriage (“união estável”).
Article 1.593 of the Brazilian Civil Code (“CC”), on its turn, establishes that “kinship may be natural or based on law, depending on whether it originates from blood or other causes”.
By “other causes” the legislator was probably referring to adoption, marriage and other traditional means of family formation expressly provided for in the CF and in the CC.
However, the wording of Article 1.593 of the CC, combined with the sole paragraph of Article 25, of Law No. 8,069/90 and Article 5, II of Law No. 11,340/06, resulted in the broadening of the concept of “family”, permitting, thus, non-traditional family models, based on affection, cohabitation and affinity to be legally recognized (“socioafetividade”).
In this regard, the Superior Court of Justice (STJ) authorized two biological brothers to pursue their intention to judicially recognize their affection-based family relationship with a woman, after her death, even though no family relationship was legally recognized between the two biological brothers and said woman’s parents.
Also in this regard, São Paulo State High Court (TJSP) recently: (i) recognized the affection-based relationship of a deceased man, in regard to the plaintiff; (ii) recognized the plaintiff as an heir of the deceased, based on affection; and (iii) determined the modification of the plaintiff’s birth certificate, in order to include the deceased as his father, maintaining the information regarding the plaintiff’s biological parents (“multiparentalidade”).
Court decisions recognizing the existence of family relationships based on affection, with all the corresponding legal effects that they bring along, are becoming more and more common.
On one hand, the legal recognition of non-traditional family models, based on affection, cohabitation and affinity helps the enforceability of fundamental rights to those individuals originally excluded from the State’s protection.
On the other hand, such recognition should also be taken into careful account, given that it opens a door to a number of claims that have never been heard of until very recently, when related to affection, most of which generating impacts on one’s estate and on its succession.
