STABLE UNION: SIMILARITIES AND DISTINCTIONS IN BRAZIL AND THE USA

Abstract

This article aims to analyze, from a comparative perspective, the conceptual aspects and legal treatment of common-law marriage in the Brazilian legal system and in the legal system of the United States. Based on the observation that, in Brazil, stable unions are family entities expressly recognized by the Constitution of the Republic and are currently regulated by the Civil Code, with a status equivalent to civil marriage in terms of fundamental rights and duties, this article seeks to highlight the distinction with the US legal reality. In the latter, there is no general and unified normative provision governing stable unions, thus giving rise to state legislation, in which the figures of common law marriage and, in the municipal legislative scenario, domestic partnership are presented, both characterized by limited scope and a lack of federal uniformity. The research demonstrates that this foreign normative model privileges and favors the centrality of formal marriage, leaving cohabitants who opt for non-formalized relationships in a vulnerable position, especially with regard to property, inheritance, and social security rights. On the other hand, Brazilian law has adopted an open normative technique, which allows the concept of family to be adapted to social and cultural changes, thus ensuring effective protection for stable unions and, consequently, consolidating a set of principles based on human dignity, solidarity, and private autonomy. It can therefore be concluded that a comparison between the two systems reveals differences in treatment, with distinct legal solutions for the recognition and protection of family entities, but which reaffirm the centrality of the historical and cultural context in the recognition and protection of stable unions in family law.