IFL Voices: Evolutions in Brazilian Family Law

This article highlights several changes in Brazilian family law that demonstrate a legal system that is addressing the changing face of families.

Family and succession law has evolved enormously around the world in recent years. Specifically, regarding Brazil, in the last 30 years there has been a silent, profound and continuous revolution, which continues to surprise us and make us fall in love with this area of law and its nuances. The legal framework for these changes deepened with the promulgation of the Federal Constitution of 1988, the so-called “Citizen Constitution”. It was with the 1988 Constitution that the paradigm shift from the classical patrimonialism system to the existentialist paradigm was implemented. It was also when the plural concept of family was established, admitting that there are various ways of living in a family that deserve protection. The priority of protecting the human person and their dignity has become one of the paradigmatic principles and foundations of the democratic rule of law. The provision of a specific constitutional chapter, reserved for the family, children, adolescents, young people and the elderly, reinforces a new social reality legally implemented just over 35 years ago in Brazil.

Such changes are a reflection of the demands that emerged from society, and in a way, the legal operators were the supporting actors of this protagonist actress that is the society, which inspires us and sometimes surprises us. This is what motivates us to continue.

Some examples of the referred changes: (i) The equality of protection between spouses and partners in a stable union or de facto union; (ii) The recognition by the Supreme Court of marriage between same sex people; (iii) Laws that enhanced the protection of women, notably in the face of child custody, including defense mechanisms against domestic or family violence; (iv) The decision of  the Supreme Court which definitively buried the discussion of role of fault in divorce and judicial separation in Brazil; (v) The issue of socio-affectivity and multi-parenthood; (vi) The recent decision of the Supreme Court that allowed the choice of marital property regime for people over 70 years old; and (vi) the fact that dating persons who plan to start a family in the future does not imply that they are in a stable union, even if there is cohabitation.

Furthermore, the project to reform the Brazilian Civil Code currently being processed in Congress, proposes significant changes to family and succession law.