Recognition of same-sex unions in Brazil

Legal recognition of same-sex relationships
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Same-sex marriage Same-sex marriage legislation Timeline of same-sex marriage Recognition of same-sex unions in Europe Marriage privatization Civil union Domestic partnership Listings by country
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Recognition of same-sex unions in Brazil has occurred since 2004. Same-sex unions now enjoy the provisions of several constitutional principles and the absence of prohibitive legislation in Brazil. The Brazilian cohabitation (unregistered unions) is granting rights similar to marriage, such as adoption, as well as all the welfare benefits such as pension, inheritance tax, income tax, social security, health benefits, immigration, joint property ownership, hospital and prison visitation, IVF and surrogacy, etc.^[1] Brazil's Supreme Court ruled in 2011 that same-sex couples are legally entitled to civil unions,^[2] laying a legal foundation for future legislation on same-sex matrimonial rights.

Same-sex marriage

On June 27, 2011, a Brazilian state judge approved what the court said is the nation's first same-sex marriage. São Paulo state Judge Fernando Henrique Pinto ruled two men could convert their civil union into a full marriage. Brazil's Supreme Court cleared the way in May for the recognition of same-sex civil unions, but stopped short of approving gay marriages.

A court statement said Pinto made the decision based on the top court's ruling on civil unions and on Brazil's constitution, which outlines how a civil union can be converted into a legal marriage. Benjamin Polastri, a spokesman with the São Paulo state Attorney General's Office, said it was not immediately clear if the ruling set a strong national precedent. Polastri also said the just-approved gay marriage was the first for South America's biggest nation.

Jose Luiz Bednarski, a lawyer for the São Paulo state attorney general, said in an opinion presented to Pinto that the marriage was legal. "The federal constitution establishes as a fundamental objective of the Federal Republic of Brazil to promote the good of everyone without bias of gender or any other form of discrimination," Bednarski wrote. "This certainly includes the choice or sexual orientation of a person."

In the Brazilian legal system, judges often seek the opinion of a state or federal attorney general about a case. After-hours calls were not answered at the National Conference of Brazilian Bishops, whose lawyers took the lead in arguing against the Supreme Court's civil union case.

While the court released only the initials of the couple that was married, the Globo television network's G1 website identified the men as Sergio Kauffman Sousa and Luiz Andre Moresi. They asked a state court in the city of Jacarei, 53 miles (85 kilometers) northeast of São Paulo, to approve their marriage. "It's an immense joy. I'm still trying to comprehend this historic moment," Moresi told G1. "We've fought for so many years and now that it's happened we're in ecstasy. I dedicate this victory to all the activists."

Luiz Mott, founder of Grupo Gay da Bahia, the oldest LGBT rights organization in Brazil, called the marriage a huge step for LGBT rights in the country. "Now any couple can ask for the same thing. It's a great advance," he said. In Latin America, gay marriage is legal only in Argentina and Mexico City.

Same-sex civil unions granting some rights to homosexual couples are legal in Uruguay and in some states of Mexico outside the capital. Colombia's Constitutional Court has granted same-sex couples inheritance rights and allowed them to add their partners to health insurance plans.

Moresi said that he knew the São Paulo state court's ruling could be reversed by a higher court, but that "we'll take the case to the Supreme Court if needed." Sousa told G1 that he and Moresi had been together for eight years and filed for civil union designation in May, less than two weeks after the Supreme Court ruling allowed them to do so. On June 6, they asked the state court to recognize their civil union as a marriage.

Pinto cited the Brazilian Constitution's section on civil unions, literally referred to as "stable unions," saying a couple "living together can, by mutual agreement and at any time, request the conversion of a stable union into a marriage." Monday's decision, along with the May ruling by the Supreme Court on civil unions, comes at a time of increasing violence targeting gays in Brazil.^[3]

Timeline

• June 27, 2011: The Justice of the city of Jacareí convert a gay civil union into a full marriage.^[4]
• June 28, 2011: The Justice of the city of Brasília convert a lesbian civil union into a full marriage.^[5]
• July 7, 2011: The Justice of the city of São Bernardo do Campo convert a lesbian civil union into a full marriage.^[6]
• July 20, 2011: The Justice of the city of Itajaí convert a lesbian civil union into a full marriage.^[7]
• July 25, 2011: The Justice of the city of Bragança Paulista convert a gay civil union into a full marriage.^[8]
• July 29, 2011: The Justice of the city of Cajamar convert a gay civil union into a full marriage.^[9]
• August 3, 2011: The Justice of the city of Recife convert a gay civil union into a full marriage.^[10]
• August 4, 2011: The Justice of the city of Araçatuba convert a gay civil union into a full marriage.^[11]
• August 11, 2011: The Justice of the city of Jardinópolis convert a lesbian civil union into a full marriage.^[12]
• August 17, 2011: The Justice of the city of Porto Feliz convert a gay civil union into a full marriage.^[13]
• August 24, 2011: The Justice of the city of Rio de Janeiro convert a gay civil union into a full marriage.^[14]
• August 27, 2011: The Justice of the city of Hortolândia convert a lesbian civil union into a full marriage.^[15]
• August 29, 2011: The Justice of the city of Franco da Rocha convert a gay civil union into a full marriage.^[16]
• August 29, 2011: The Justice of the city of Franco da Rocha convert a lesbian civil union into a full marriage, the second in the city.^[17]
• September 2, 2011: The Justice of the city of Limeira convert a lesbian civil union into a full marriage.^[18]
• September 13, 2011: The Justice of the city of Soledade convert a lesbian civil union into a full marriage.^[19]
• September 17, 2011: The Justice of the city of Jardinópolis convert a lesbian civil union into a full marriage.^[20]
• October 25, 2011: The Superior Court of Justice declared that the legal union of two women who petitioned the court could be recognized as a marriage.^[21]

History

Same-sex relationships legal   Same-sex marriage   Other type of partnership (or unregistered cohabitation)   Same-sex marriage recognized, but not performed   Homosexuality legal but same-sex unions not recognized

Same-sex relationships illegal   Minimal penalty   Large penalty   Life in prison   Death penalty

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In 2004, the first case of recognition of same-sex unions in Brazil occurred with a binational English and a Brazilian. This legal precedent encouraged other couples to marry around the country. By the time of the ceremony, in the form of common-law marriage, a status that until then was only allowed to opposite-sex couples. The couple have lived together for fourteen years, in the Brazilian city of Curitiba.^[22]

In 2010, the Foreign Ministry officialized the right of diplomatic LGBT partners of servers working in Brazil's representations abroad. The decision, which equals homosexual and heterosexual partners was announced in an internal announcement to embassies and consulates in over 200 countries. According to the Foreign Ministry, the measure must ensure that employees register their LGBT partners to secure their right to stay outside the country. Now, with the grant of diplomatic passports, in practice, means that it would be easier for the partner to obtain a residence permit. This decision complements other resolutions, that has enabled the officials in the Foreign Ministry's services to include same-sex partners as dependents on health plans.^[23]

Also in 2010, the state-owned Infraero (Brazilian Company of Airport Infrastructure) came to recognize the stable union between same-sex couples for purposes of granting benefits. The change came with the signing of the new Collective Work Agreement. To receive the benefit, one must have registered the union through the public notary.^[24]

On May 5, 2011, Brazil's Supreme Federal Court ruled that civil unions must be allowed throughout the country. The decision was approved by 10-0; one justice abstained from voting because he had previously spoken publicly in favor of same-sex unions when he was attorney general. The ruling will give LGBT couples in stable partnerships the same financial and social rights enjoyed by those in heterosexual relationships. Civil union of a same-sex couple guarantees the same 112 rights as marriage of opposite-sex couples.^[25]

Brazil's high court ruling came in response to two lawsuits, one filed by the Rio de Janeiro state government in 2008 and another in 2009 by the Public Ministry, a group of prosecutors that is part of the federal government but independent from its executive, legislative and judicial branches. To qualify as a stable union, same-sex couples can officially register as a civil union or prove it the same way some heterosexual couples do, by having a bank account together or living at the same address.^[26]

On June 17, 2011, a judge from Goiânia, Jeronymo Pedro Villas Boas, annulled the first civil union that happened in the country, between Liorcino Mendes and Odilio Torres, and also ordered all notaries in Goiânia to not issue civil unions anymore. ^{[27] [28] [29] [30]} Villas Boas, who is also a church pastor of the Assembleia de Deus, claimed that same-sex unions are unconstitutional. ^[31] On June 21, another judge, Beatriz Figueiredo Franco, cancelled Villas Boas decision, making the union valid again. ^[32] Concerned, Liorcino Mendes and Odilio Torres signed again another civil union in Rio de Janeiro. ^[33]

On June 27, 2011, a Brazilian judge in the State of São Paulo had converted a civil union into a same-sex marriage. It is not clear whether the ruling presents a precedent for additional same-sex marriages. The Supreme Federal Court had ruled in May that same-sex marriages are not required by the constitution of Brazil.^[34]

On June 28, another stable union between same-sex couples has been converted into a marriage. This time it was Judge Jennifer Antunes de Souza, the 4th of Brasília Family Court which upheld the order.

Immigration rights

In Novermber 2011 Brazil’s government for the first time granted a foreign citizen the right to live permanently in the country based on a same-sex relationship with a Brazilian citizen, according to a notice published Monday in the country’s Federal Register^[35].

Pension

Lesbian couple in Brasília.

Gay couple in Brasília.

Pensions for members of same-sex couples in Brazil is legal according to the Superior Court of Justice of Brazil, decision as stated in a court decision, which came to effect on February 9, 2010.^[36] Upon proof of the existence of a stable union between persons of the same-sex, the right of the surviving partner to receive benefits under the private and public pension plan must be recognized. This unprecedented decision, was granted within the General System of Social security, through the 3rd Chamber of the Superior Court of Justice in Case reported by Minister Nancy Andrighi.^[37]

Nancy Andrighi said that recognition of this relationship as a family unit must be preceded by a clear demonstration of the presence of the essential elements of the characterization stable. "Demonstration of coexistence between two persons of the same-sex, public, continuous and permanent, established with the goal of starting a family, there will, therefore, be recognition of such a union as a family unit with proper attribution of the legal consequences arising from it."^[38] In a decision of 14 pages in which he approached doctrines, laws and principles, among them the dignity of the human person, the Minister stressed that the affective union formed between people of same-sex can not be ignored in a society with structures of each family life increasingly complex, to avoid that because of prejudice, are suppressed human rights of those involved.^[39]

Health benefits

Protest in front of the National Congress of Brazil.

Health benefits for same-sex couples in Brazil is legal and mandatory for all health plans in operation in the country, according to the National Agency of Health, as stated in an official decision, on May 4, 2010.^[40]

The same-sex couples may include the partner as a dependent on their health plan. This was an important development for LGBT couples who were often forced to make two health plans to the same family. The new standard from the National Agency for Supplementary Health (ANS) is defined as a fellow recipient of the holder of a private health plan of health care both of the opposite sex as the same-sex.

The National Agency of Health issued a legislative summary in the Official Gazette, which requires all operators to adopt the new guidelines. The agency said the change is based on the Civil Code and the Federal Constitution which cites as fundamental objectives "to promote the good of everyone, without prejudice as to origin, race, sex, color, age and other forms of discrimination (including sexual orientation)."^[41]

The communication director of the National Union of Institutions of Self-Management in Health, Orency Francisco da Silva said that many same-sex couples already have such policies. "Most of our companies are already working this way. It will have a big impact on us to adapt, but we will only accept couples who submit documents proving the stable union". The association serves more than 5 million beneficiaries from 140 health insurance companies in the country.^[42]

Income tax

Income tax benefitis for same-sex couples in Brazil is legal, according to the Federal Revenue, as stated in an official decision, which was established on July 30, 2010.^[43] The Federal Revenue adopted the opinion that homosexuals had the right to include their partner as a dependent in the statement of Income tax. The Attorney General of the National Treasury has drafted a report with the new rule. The opinion was as the result of a query made by a public servant who wanted to include her companion, exempted in Income tax, as her dependent. With the case, a precedent was established for other same-sex couples found in similar situations.^[44]

Based on the principle of equality in treatment, the report says that the legislation provides for the inclusion of fellow stable heterosexual unions as dependents on income tax so it should guaranteed the same right to homosexual partners. According to the opinion released, it is necessary that the couple living together must have lived over five years for inclusion. The Federal Revenue may notify the taxpayer to be able to check the information.^[45]

Joint property ownership

Private as well as public Brazilian banks already permit the inclusion of income of same-sex couples in the operations of real estate financing. In some institutions, when a house is being bought jointly, the partners must certify of the union through a written statement. At the Bank of Brazil (BB), the letter should be handwritten. Typically, banks assess the payment capacity of the two people separately. But in case of default, the two are notified.

See also

	LGBT portal
	Brazil portal

• LGBT rights in the Americas
• LGBT rights in Brazil
• ADI 4277 and ADPF 132
• Common law marriage
• Registered partnership
• Status of same-sex marriage
• Timeline of same-sex marriage
• Timeline of LGBT history

References

1. ^ União civil entre pessoas do mesmo sexo (LGBT civil unions in Brazil) (Portuguese)
2. ^ Brazil's Top Court Approves Civil Unions (English)
3. ^ The first same-sex marriage in Brazil (English)
4. ^ Gay marriage in Jacareí (Portuguese)
5. ^ Lesbian marriage in Brasília (Portuguese)
6. ^ Lesbian marriage in São Bernardo do Campo (Portuguese)
7. ^ Lesbian marriage in Itajaí (Portuguese)
8. ^ [Gay marriage in Bragança Paulista (Portuguese)
9. ^ Gay marriage in Cajamar (Portuguese)
10. ^ Gay marriage in Recife (Portuguese)
11. ^ Gay marriage in Araçatuba (Portuguese)
12. ^ Lesbian marriage in Jardinópolis (Portuguese)
13. ^ [Gay marriage in Porto Feliz (Portuguese)
14. ^ Gay marriage in Rio de Janeiro (Portuguese)
15. ^ Lesbian marriage in Hortolândia (Portuguese)
16. ^ [Gay marriage in Franco da Rocha (Portuguese)
17. ^ Lesbian marriage in Franco da Rocha (Portuguese)
18. ^ Lesbian marriage in Limeira (Portuguese)
19. ^ Lesbian marriage in Soledade (Portuguese)
20. ^ Lesbian marriage in Jardinópolis (Portuguese)
21. ^ http://abcnews.go.com/International/wireStory/top-brazil-appeals-court-upholds-gay-marriage-14813652
22. ^ The first registered same-sex union in a Brazilian notary public (Portuguese)
23. ^ Foreign Ministry recognizes Same-sex couples (Portuguese)
24. ^ Infraero and same-sex unions are legal (Portuguese)
25. ^ More 112 rights to same-sex couples (Portuguese)
26. ^ Same-sex unions recognized by Brazil's high court (English)
27. ^ Goiás judge annuls first gay union after Supreme Court's decision (Portuguese)
28. ^ Judge annuls stable union contract between homosexuals (Portuguese)
29. ^ Homosexual union will go back to Supreme Court (Portuguese)
30. ^ Brazilian judge declares Supreme Tribunal decision favoring civil unions ‘unconsitutional’ (English)
31. ^ Judge accused of insubordination that annulled gay union is pastor of Assembleia de Deus (Portuguese)
32. ^ Beatriz cancels decision by Jerônymo Villas Boas (Portuguese)
33. ^ Goiás judge who annulled union of gay couple denies being homophobic (Portuguese)
34. ^ The first gay marriage in Brazil (English)
35. ^ Brazil grants a foreigner permanent residency based on same-sex-marriage. // Washington Post, 14.11.2011
36. ^ Member of homosexual couple can receives pension (Portuguese)
37. ^ Pension to member of Same-sex couple in Brazil is legal according to STJ (Portuguese)
38. ^ LGBT couples and Pensions are possible in Brazil according to Superior Court of Justice (Portuguese)
39. ^ STJ guarantees rights of LGBT couples in private and public pension (Portuguese)
40. ^ Homosexual couples can be declared as dependents for health benefits, decides to the National Agency of Health (Portuguese)
41. ^ Health benefits for same-sex couples is legal in Brazil (Portuguese)
42. ^ Same-sex stable union and Health benefits (Portuguese)
43. ^ LGBTs and the Brazilian Income Tax (Portuguese)
44. ^ Income tax and Same-sex couples are possible in Brazil (Portuguese)
45. ^ Income tax for Same-sex couples in Brazil (Portuguese)