Post by sailasathay on Jan 10, 2024 12:12:55 GMT 1
This question was not answered by the 3rd Panel of the STJ when judging REsp 1.916.031/MG, in which the partner of a married man — and who maintained simultaneous relationships with her and his wife, with children, from 1986 to 2014 —, intended the recognition and dissolution of stable unions parallel to marriage, as well as sharing in the format of triation (and not sharecropping) [1] .
The issue is so controversial that the sentence, attentive to the peculiarities of the specific case, recognized the parallel stable union and determined the sharing of assets in the triage format; the TJ-MG, in turn, amended the sentence to dismiss the action as unfounded; and the STJ partially granted the partner's appeal to recognize — as a de facto partnership — governed by obligatory law, the time in which the married man lived simultaneously with his partner, if the requirements of Summary 380/STF were met.
The STJ, qualifying the relationship with the partner as impure concubinage , states that the recognition of a stable union concomitantly with marriage is inadmissible, as it presupposes the absence of impediments to marriage or, at least, the existence of de facto separation ( article 1,723, §1, of CC/2002).
He concluded that, considering that the impure WhatsApp Number List concubine maintained between the parties for 25 years was proven, this is equivalent to the de facto society and, consequently, generates patrimonial repercussions (sharing) to be determined in settlement of the sentence.
Even invoking the STF's understanding that the Brazilian legal-constitutional system enshrines the duty of fidelity and monogamy (RE 1.045.237/SE, Pleno, DJe 09.04.2021), the judge loses the opportunity to move forward and contemplate the peculiar situation from a broader and more realistic view of family relationships today.
The question arises: How can we invoke duties of fidelity and monogamy when the couple and their partner were aware of the coexistence of relationships, including the formation of two families, with children within the marriage and stable union?
With due respect, the STJ provided a legal solution that only suits ideal situations. However, it does not solve — fairly — real situations, in which there is not only the concomitance of a stable union with marriage, but also the concomitance of families (parallel/simultaneous families) which, equally, also deserve constitutional protection.
The issue is so controversial that the sentence, attentive to the peculiarities of the specific case, recognized the parallel stable union and determined the sharing of assets in the triage format; the TJ-MG, in turn, amended the sentence to dismiss the action as unfounded; and the STJ partially granted the partner's appeal to recognize — as a de facto partnership — governed by obligatory law, the time in which the married man lived simultaneously with his partner, if the requirements of Summary 380/STF were met.
The STJ, qualifying the relationship with the partner as impure concubinage , states that the recognition of a stable union concomitantly with marriage is inadmissible, as it presupposes the absence of impediments to marriage or, at least, the existence of de facto separation ( article 1,723, §1, of CC/2002).
He concluded that, considering that the impure WhatsApp Number List concubine maintained between the parties for 25 years was proven, this is equivalent to the de facto society and, consequently, generates patrimonial repercussions (sharing) to be determined in settlement of the sentence.
Even invoking the STF's understanding that the Brazilian legal-constitutional system enshrines the duty of fidelity and monogamy (RE 1.045.237/SE, Pleno, DJe 09.04.2021), the judge loses the opportunity to move forward and contemplate the peculiar situation from a broader and more realistic view of family relationships today.
The question arises: How can we invoke duties of fidelity and monogamy when the couple and their partner were aware of the coexistence of relationships, including the formation of two families, with children within the marriage and stable union?
With due respect, the STJ provided a legal solution that only suits ideal situations. However, it does not solve — fairly — real situations, in which there is not only the concomitance of a stable union with marriage, but also the concomitance of families (parallel/simultaneous families) which, equally, also deserve constitutional protection.
