Same-sex marriage in Brazil
|Legal status of
*Not yet in effect
Since May 14, 2013, same-sex marriage has been a right of all same-sex couples to access marriage status, due to a sweeping Federal Court ruling, which denies notaries of states who do not recognise same-sex marriage the right to refuse to perform same-sex marriages. The ruling is on appeal to the Supreme Court. Same-sex unions have been legally recognized in Brazil since 2004. Since 2013 same-sex couples enjoy the provisions of several constitutional principles and the absence of prohibitive legislation. Stable union (Portuguese: união estável) is available for same-sex couples since May 2011. These unions are granted rights similar to those in marriages, including adoption, welfare benefits, pension, inheritance tax, income tax, social security, health benefits, immigration, joint property ownership, hospital and prison visitation, IVF and surrogacy.
Brazil's Supreme Federal Court ruled, in 2011, that same-sex couples are legally entitled to those unions, laying a legal foundation for future legislation on same-sex matrimonial rights. Several unions were converted into full marriage by state judges. Before the nationwide legalization in May 2013, Alagoas, Bahia, Ceará, Espírito Santo, Federal District, Mato Grosso do Sul, Paraíba, Paraná, Piauí, Rondônia, Santa Catarina, Santa Rita do Sapucaí (MG), São Paulo, and Sergipe allowed same-sex marriages in a manner that is equal to opposite-sex marriages, while Rio de Janeiro in April 2013 allowed local judges to perform same-sex marriages if they agreed to do so. Other states all recognized the marriages, and had registered marriages (often after a judicial approval) on a case-by-case basis.
Nevertheless on May 14, 2013, The Justice's National Council of Brazil legalized same-sex marriage in the entire country in a 14-1 vote by issuing a ruling that orders all civil registers of the country to perform same-sex marriages and convert any existing civil unions into marriages if such a couple desires. Joaquim Barbosa, president of the Council of Justice and the Supreme Federal Court said in the decision that notaries cannot continue to refuse to "perform a civil wedding or the conversion of a stable civil union into a marriage between people of the same sex." The ruling was published on May 15 and took effect on May 16, 2013.
In 2004, the first case of recognition of same-sex unions in Brazil occurred with a binational Englishman and a Brazilian. This legal precedent encouraged other couples to marry around the country. At the time of the ceremony, in the form of common-law marriage, this was a status that, until then, was only granted to opposite-sex couples. The couple had lived together for fourteen years, in the Brazilian city of Curitiba.
In 2010, the Foreign Ministry officialized the right of diplomatic LGBT partners of servers working in Brazil's representations abroad. The decision, which includes homosexual and heterosexual partners, was announced internally 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.
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, the union must be registered through the public notary.
On 5 May 2011, Brazil's Supreme Federal Court ruled that civil unions must be allowed throughout the country. The decision was approved by 10-0; one judge abstained because he had previously spoken publicly in favor of same-sex unions when he was attorney-general. The ruling resulted in stable partnerships for LGBT having 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. 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.
On 17 June 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. Villas Boas, who is also a church pastor of the Assembleia de Deus, claimed that same-sex unions are unconstitutional. On 21 June, another judge, Beatriz Figueiredo Franco, cancelled Villas Boas decision, making the union valid again. Concerned, Liorcino Mendes and Odilio Torres signed again another civil union in Rio de Janeiro.
On 27 June 2011, a Brazilian judge in the State of São Paulo 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. On 28 June, another stable union between same-sex couples was converted into a marriage. This time it was Judge Jennifer Antunes de Souza, the 4th of Brasília Family Court, who upheld the order.
On 7 June 2013, the Brazilian Air Force recognized the "stable union" of a sergeant and his partner after he presented a notarized deed documenting their relationship; the Air Force did not comment on the recognition, and could not confirm if the relationship was the first same-sex union certified by the branch. On 8 August 2013, Judge Elio Siquerira of the 5th region TRF ruled on appeal that the Brazilian Army must recognize the civil union (performed in January 2012 in Pernambuco) of a servicemember and his same-sex partner, and must also accord a military spousal pension to the partner. It marked the first time that a state-recognized same-sex union was recognized by the Army.
Marriage law is governed by federal rather than state law and involves issuing of a marriage certificate by a notary. In May 2011, the Supreme Federal Court decided that the present marriage law already did allow for both opposite and same-sex marriages. Based on this decision, many states amended its guidances for issuing marriage certificates to implement the Supreme Court decision and allow same-sex marriage through a notary. In other states notaries who preside over marriage licenses and perform marriages are required by judicial order to provide such services to same-sex couples.
National Justice Council ruling
On 14 May 2013, The Justice's National Council of Brazil legalized same-sex marriage in the entire country in a 14–1 vote, via a ruling that orders all civil registers of the country to perform same-sex marriages and to convert any existing civil unions into marriages if the couple so desires. Joaquim Barbosa, president of the Council of Justice and the Supreme Federal Court, said in the decision that notaries cannot continue to refuse to "perform a civil wedding or the conversion of a stable civil union into a marriage between persons of the same sex."
On 21 May 2013, the Social Christian Party (SCP) lodged an appeal of the National Council's decision in the Supreme Federal Court of Brazil. The party alleged that the Council had committed an abuse of power and that legalising same-sex marriage was a matter exclusively for the legislature to decide. For the time being, the appeal does not affect the Council's original decision in favour of same-sex marriage. On 30 May 2013, the Supreme Federal Court rejected the appeal on technical grounds, stating that the SCP had used the wrong form of appeal. The Court held that the National Council's decision could only be challenged through a "direct action for unconstitutionality" (ação direta de inconstitucionalidade) rather than an action for injunction (mandado de segurança). On 6 June 2013, the SCP re-lodged the appeal. On 28 August 2013, the Procuradoria Geral da República (Attorney General) forwarded to the Supreme Court opinion in favor of same-sex marriage in Brazil.
Religious protection amendments
A Brazilian legislative commission for human rights recommended in October 2013 a measure that would ensure that religious bodies would not be require to solemnize same-sex marriages. The proposal would allow a religious body to decline to officiate at marriages of those “who violate its values, doctrines, and beliefs.” The proposal will be brought forward in Brazil’s legislature if it is approved by a constitutional committee.
Timeline prior to 2013 ruling
In several individual cases, marriage licenses were granted, often through the decision of a judge. Notable cases include:
- On 27 June 2011 São Paulo state Judge Fernando Henrique Pinto ruled that two men could convert their civil union into a full marriage, and indicated this was a first for Brazil. The ruling was based on the May Supreme Court decision.
- On 31 May 2012, a civil partnership contracted by two men in England was converted into a marriage when the couple moved to Brazil. The Brazilian Embassy ruled in favour due to a 2003 decision issued by a judge.
- On 29 May 2012, four of six notaries of Porto Alegre, capital of Rio Grande do Sul, agreed to convert civil unions into marriages.
- On 28 June 2012, in the state of Pará, 28 same-sex couples got married in a ceremony, that took place in Belém.
The 2011 Supreme court decision gave rise to several states explicitly altering their procedures enabling same-sex couples to marry in a manner that is bureaucratically identical to opposite-sex couples. Those states are listed below:
- On 7 December 2011, the Corregedoria Geral da Justiça of Alagoas ordered the Civil registry of Alagoas to issue marriage licences to same-sex couples, being the first state to enable same-sex marriages to be recognized in the same way as other marriages.
- On 5 July 2012, Brazilian State's Judiciary Power of Sergipe issued "Provimento nº 06/2012" regulating same-sex marriage throughout the State.
- On 9 July 2012, Santa Rita do Sapucaí becomes the only city in the country (and in the world) that allows the same-sex marriages by itself, after the decision of one judge of Minas Gerais (the state of Santa Rita do Sapucai).
- On 15 August 2012, the Corregedoria Geral da Justiça of the State of Espírito Santo issued a Circular Letter stating that all Civil Regestries of that State should address same-sex marriage the same way they would do it regarding that for opposite-sex couples, making it the third Brazilian State to deal with this subject in its State jurisdiction.
- On 26 November 2012, the Court of Bahia adapted the text of the directive regulating marriages to include same-sex marriage in a manner equal to other couples.
- On 1 December 2012, the Court of Public Registers of the Federal District, ruled that, effective immediately, same-sex marriage licenses should be granted without a judge's intervention.
- On 15 December 2012, the Corregedor Geral de Justiça of Piauí updated its marriage provisions in a similar manner.
- On 18 December 2012, the Court of São Paulo did the same, with an entry into effect 60 days later.
- On 7 March 2013, Ceará's state general attorney, Francisco Sales Neto, ruled in decision 02/2013 that all notaries statewide are obligated to accept same-sex marriages. The decision took effect on 15 March 2013.
- On 26 March 2013, the Corregedor Geral de Justiça of Paraná ruled that same-sex marriage and conversion of the stable unions to marriage should be possible using the normal marriage procedures.
- On 2 April 2013, the Court of Mato Grosso do Sul authorizes marriage between same-sex couples in the state.
- On 17 April 2013, the General Magistrate of Justice of Rio de Janeiro, Judge Valmir de Oliveira Silva, published a legal ruling authorizing same-sex marriage in the state if local judges agree. Same sex weddings are poised to begin in the coming days. According to the ruling (25/2013), a couples' request must be registered by civil registry officers, who have to give 15 days for the district to decide if they agree. If they don't agree, the marriage cannot proceed.
- On 26 April 2013, the Corregedoria Geral de Justiça of the state of Rondônia published in the Diário da Justiça Eletrônico this Friday, April 26, 2013, the Provision 008/2013-CG which provides for the direct qualification for marriage between same-sex and conversion of stable in marriage in the civil registration records of the State of Rondônia.
- On 29 April 2013, the Corregedoria Geral de Justiça of the state of Santa Catarina authorizes same-sex marriage in a manner equal to opposite sex couples if both applicants are resident of the state.
- On 29 April 2013 the Corregedoria Geral de Justiça of the state of Paraíba, Judge Murilo Márcio da Cunha Ramos, authorized the release of a Provision (06/2013) which enables same-sex marriage.
- LGBT rights in Brazil
- ADI 4277 and ADPF 132
- Rcl 12876 and MS 32077
- Recognition of same-sex unions in South America
- Brazilian Institute of Family Law
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- Brazil judicial panel clears way for gay marriage
- Brazilian judicial council orders notaries to recognize same-sex marriage
- Brazil clears way for gay marriage
- União civil entre pessoas do mesmo sexo (Lesbian, Gay, Bisexual and Transgender [LGBT] civil unions in Brazil) (Portuguese)
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- After Judicial liberation, Santa Rita do Sapucaí got its first same-sex marriage
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- Decisão do CNJ obriga cartórios a fazer casamento homossexual
- CNJ obriga cartórios a converterem união estável gay em casamento
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- (Portuguese) DIÁRIO DA JUSTIÇA CONSELHO NACIONAL DE JUSTIÇA Edição nº 89/2013
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- Goiás judge annuls first gay union after Supreme Court's decision (Portuguese)
- Judge annuls stable union contract between homosexuals (Portuguese)
- Homosexual union will go back to Supreme Court (Portuguese)
- Brazilian judge declares Supreme Tribunal decision favoring civil unions ‘unconsitutional [sic]’ (English)
- Judge accused of insubordination that annulled gay union is pastor of Assembleia de Deus (Portuguese)
- Beatriz cancels decision by Jerônymo Villas Boas (Portuguese)
- Goiás judge who annulled union of gay couple denies being homophobic (Portuguese)
- The first gay marriage in Brazil (English)
- "FAB reconhece como dependente marido de sargento homossexual ("FAB recognizes husband of homosexual Sergeant as dependent")".
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- Judges clear the way for gay marriage throughout Brazil
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- (Portuguese) PSC volta a acionar STF contra casamento gay em cartórios
- Procuradoria encaminha para o STF parecer favorável ao casamento gay
- Brazil: proposal would allow churches to decline same-sex marriages
- Marriage news watch (English)
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- "CGJ-PR divulga instrução sobre procedimentos de habilitação para casamentos homossexuais, instrução normativa Nº 2/2013". Promad.com.br. 3 April 2013. Retrieved 3 April 2013. "Que os magistrados e agentes delegados dos Registros Civis de Pessoas Naturais do Estado do Paraná observem as decisões proferidas pelo Superior Tribunal de Justiça (REsp nº 1.183.378-RS) e por esta Corregedoria da Justiça (autos de consulta nº 2013.49650-9/000), procedendo à habilitação de pessoas do mesmo sexo para o casamento civil, nos termos dos artigos 1.525 e seguintes da Lei Federal nº 10.406/2002 (Código Civil)."
- "Tribunal de Justiça autoriza casamento gay em Mato Grosso do Sul" [Court allows gay marriage in Mato Grosso do Sul] (in Portuguese). Retrieved 3 April 2013.
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