The Brazilian Dating Agreement: From Fiction to Reality

This article focuses on an interesting legal contract that has become more common in Brazil: a dating agreement. A dating agreement’s main objective is to distinguish, and exclude, a particular relationship from that of a “family.”

The concept of “liquid love” was coined by sociologist Zygmunt Baumann as a response to post-modern or contemporary relationships, in which the concept of living means entering into a great succession of restarts. In a reality in which social relationships have become synonymous with superficial, ephemeral, non-lasting connections, in which commitments are revocable at any time, and when ties are tied loosely, in order to facilitate the way in which they will be undone, individuals will be saved from a relationship of unnecessary delays. In this way, relationships are increasingly seen as “stillborn, inadequate, invalid or unviable, born with the mark of imminent discard.” The opposite of liquid love, in a very simplistic and objective way, would be solid love. “While solids have well-defined spatial dimensions, being molded definitively. Liquids are identified by their fluidity, unable to maintain a fixed shape for a long time and always predisposed to changing it.”

Thus, thinking in the form of a minimum family law, as argued by Marília Pedroso Xavier defended minimum State intervention in families, which should only occur when situations of vulnerability and inequality exist. This is the premise of a dating agreement. Once assumed under good faith and without the intention of defrauding any underlying stable union, a dating agreement prioritizes private autonomy and protects the parties from the supplementary will of the State to intervene in personal relationships.

The dating agreement began in mid-2002, because of people's desire to regulate their patrimonial relationship, and is currently widely used. Many senior couples, who have already been through other relationships, marriages, or stable unions and who would like to try a new relationship, but without necessarily being a family or in a “forever” relationship, who would like to get to know each other better, be and travel together, have sexual relations or cohabitation, opted for the path of a dating agreement. It is also a fact that the COVID-19 pandemic led to many cases of dating persons living together, to be able to exercise their emotional and sexual relationships, given the isolation to which everyone was subject. Especially young couples, who began to cohabit during the period of isolation, faced a situation that required a legal framework for their status, in order to avoid possible consequences for property, family entities or even succession.

In this context, the dating agreement gained importance, especially in view of the jurisprudential precedent of the Superior Court of Justice (STJ) that superimposed dating on a stable union, distinguishing these institutions only by the intention of creating a family, which, to characterize a stable union, must appear present throughout the coexistence, based on the effective sharing of lives. Thus, without the intention of modifying family status, the partnership resulting from the dating relationship does not generate patrimonial effects as in a stable union.

There is no model of a dating agreement. Each dating agreement must correspond to the reality experienced by the dating persons and their respective desires and interests. In addition, the dating persons need to identify at what point in the relationship such an agreement should be made. It is understood that the opportune moment is when the relationship has typical features of a “qualified dating relationship”, that is, in general terms when the relationship is public, continuous and lasting, but still without the objective of starting a family. Therefore, it is up to the legal professional to clearly guide the persons who are dating, according to the factual context that exists between them. In addition to being written, it is recommended that the agreement is signed before a public notary and even updated and ratified from time to time to confirm that the will of the parties is maintained.

As a precaution, when drafting the dating agreement, it must be stated that, although it is a public and continuous and lasting relationship, it is a relationship without the objective of starting a family. A well drafted contract should include clauses that the dating persons have never and do not intend to start a family; that the agreement can be terminated by either person; that the dating persons understand that the requirements for a “stable union” are not present and, if that changes, they will establish a property regime; a way to divide their common expenses; that they do not intend to have common assets; and, that they intend to maintain their own individual assets. The Superior Court of Justice (STJ) has stated that a patrimonial property regime of assets cannot be retroactively applied to a stable union, so that if the relationship becomes a stable union, and the parties do not establish a property regime, the default from the Brazilian Civil Code will apply, which is the one of partial community of property.

There is nothing in the Brazilian legal system that prohibits a dating agreement, and Brazilian courts have recognized its application and even recommended it in situations that, if they existed, could avoid the recognition of stable unions. On the other hand, the dating agreement was not foreseen in the reform of the Civil Code currently being processed in Congress mentioned above, and the fact is that reality requires us to treat the topic of a “dating agreement” according to the circumstances of each case, being no standard or general model to be followed, as we mentioned before.