Gay marriage in Brazil

Since the beginning of the 2000s, several countries around the world began to allow marriage between people of the same gender, as a way to guarantee equal rights that did not exist for this group of people.

From 2011 onwards, this has also been happening in Brazil in a peculiar form, as we will see further.

In this article, we will address the issue of marriage between people of the same gender and other important aspects to better comprehend this subject, from a legal perspective of the Brazilian reality.

Author: Lucas Gomes Furtado

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Since when are same-sex marriages allowed in Brazil?

As of now, there is no specific law that regulates same-sex marriage in Brazil.

However, in the year of 2011, in an unprecedented decision, the Supreme Federal Court (STF) recognized a domestic partnership between people of the same gender in the same conditions as a domestic partnership between heterosexual people.

Afterward, in 2013, the National Council of Justice (CNJ) approved a resolution that allowed civil marriage between people of the same gender to be registered in the registry offices around the country, preventing this right be denied.

This means that, since then, all registry offices cannot deny registering same-sex marriages in the country and must follow the same procedures regarding a heterosexual marriage.

Thus, it’s essential to mention that same-sex civil marriage is allowed in Brazil, according to the decision of the Supreme Federal Court and the resolution n. 175, issued by the National Council of Justice.

How does a same-sex domestic partnership work in Brazil?

In Brazil, domestic partnerships are characterized by a lasting relationship between two people as if they were married, although they are not if some requirements are fulfilled.

As was said before, same-sex domestic partnerships only became a reality in Brazil in 2011, when the Supreme Federal Court recognized it as equal to domestic partnerships between heterosexual people.

In reality, it means that the necessary requirements for a heterosexual domestic partnership and a same-sex domestic partnership to be admitted are exactly the same, as there is no distinction between them.

Therefore, both the heterosexual couple and the homosexual couple must prove, with documents and witnesses, that their relationship:

• is public;
• is continuous;
• is durable;
• aims to establish a family.

For this partnership to be formalized in a registry office, some personal documents belonging to the couple are necessary, such as their identity card and their CPF, as well as a marital status certificate. The couple will also be allowed to choose a matrimonial regime to manage the partnership if they wish.

If the partnership was never formalized in a registry office, it can be proved through other kinds of documents belonging to the couple, such as proof of a joint account, proof of dependency, and the birth certificates of their children, among others.

What rights may result from same-sex marriage in Brazil?

Marriage between two people brings on itself a series of rights and obligations to which both spouses are linked, and this is not different regarding same-sex marriage in Brazil.

For example, among the more common rights which may result from marriage is the possibility of performing some joint actions, such as having a joint account and filling the income tax declaration, among others.

Furthermore, a spouse can also claim themselves as a dependent of the other one in certain situations, such as for income tax and health insurance, for instance.

Another relevant rights are inheritance rights, which one of the spouses has when the other one dies. In this case, there is an important question to be raised between marriage and domestic partnership, whether heterosexual or homosexual.

If the couple is married, the surviving spouse will have inheritance rights depending on the matrimonial regime, the type of property left, and the existence of other heirs, without the need for any proof.

However, if there is a domestic partnership that has not been registered in a registry office when the partner was alive, it will be necessary first to prove this partnership in a lawsuit in order to recognize it.

Nowadays this kind of situation is quite common in Brazilian society, as few couples decide to formalize their domestic partnership in a registry office.

Therefore, only after this proof of domestic partnership will the surviving partner have the same inheritance rights regarding their partner’s property, as if they were married to them.

This same proof must be provided for the surviving partner to be able to qualify for a survivor’s pension, for example, if that is the case.

It’s also worth mentioning that, besides all these rights, both spouses also have several obligations as a couple, such as mutual respect and assistance, and must also assure their children’s support, custody, and education.

How can a lawyer help the couple before and after their same-sex marriage in Brazil?

In Brazil, it is very common for two people to stay in a long-term relationship and start a family without getting married, as they may not know that rights and obligations can also result from this type of relationship.

Thus, many doubts may arise regarding the legal effects of a marriage and a domestic partnership in the life of a couple.

Likewise, there may be many other questions concerning same-sex marriage in Brazil, mostly because the theme has not been regulated by any specific law until now.

Therefore, a lawyer will be able to assist this couple when it comes to the proceedings for same-sex marriage in Brazil, for the recognition of a domestic partnership, and the consequences of each situation for them.

It’s important that this couple acknowledges all the legal implications that the recognition of a domestic partnership or marriage may have in their married life and their personal life.

Similarly, even after the marriage is performed, this professional may also help the couple with questions related to marital rights and obligations, especially in case of divorce or death, such as shared property, pension, inheritance, and others.

Finally, the assistance of a specialized lawyer to help clarify doubts can always be beneficial for both a couple who intends to start a family in the future and a couple who has already started a family.

Are same-sex marriages performed abroad valid in Brazil?

Yes. A marriage correctly performed abroad is considered valid in Brazil, and the same goes for both heterosexual and homosexual marriages.

In other words, there is no obstacle for a same-sex marriage performed abroad to be considered valid in Brazil, as it is in conformity with the law of both countries.

However, for this marriage to have legal effects in Brazil, it is necessary for the couple to register it in Brazilian territory. The proceeding is an extrajudicial one and it must be done as follows:

The marriage needs to be registered at the Brazilian Consular office in the country where it was performed. The Brazilian spouse must be present at that time as they will act as the declarant, who will sign the terms on the record book.

To do that, the couple needs to present the following:

• the marriage registration form, filled and signed by the declarant;
• the foreign marriage certificate;
• the prenuptial agreement, if it exists;
• their original and valid passports, or another identity document;
• if the spouse is not Brazilian, a declaration of marital status;
• in case the spouse has been married before, a death certificate, if they are widowed, or proof of divorce, if they are divorced.

Subsequently, the Consular office will issue a Brazilian marriage certificate with all the information present in the original marriage certificate.

After they arrive in Brazil, the spouses must have their marriage transcribed in the 1st Civil Registry Office from the jurisdiction of their domicile, or in the 1st Civil Registry Office from the Federal District if they do not live in the country, within 180 days of their arrival.

After they fulfill the requirements and the transcription is complete, the marriage will be considered registered, and the couple will receive the final document at the same time and will not have to wait longer for it.

If the spouses arrived in Brazil without having their marriage registered in the Consular office abroad, they can have it registered directly in the 1st Civil Registry Office, as long as their foreign marriage certificate has an apostille stamp (if the country of origin is a signatory to the Hague Convention), or has been legalized, and also translated to Portuguese by a sworn translator in Brazil.

It’s important to remember that the previous situation also applies when both spouses are not Brazilian citizens, as they would not be assisted by the Brazilian Consular Office abroad with reference to their marriage registration.