Poliamor: uma análise acerca da constitucionalidade das uniões poliafetivas no Brasil

Abstract

The present study aims to analyze the constitutionality of poliaffective unions in the Brazilian legal system. Polyaffective unions are the relationships between three or more people who, independently of their sex and sexuality, relate to each other jointly and simultaneously, in a reciprocal interaction, forming a single affective bond. The deeds of a stable polyaffective union do not have the power to create rights, declaring only a de facto situation, since stable unions do not begin with the declaration, but with the coexistence. The advent of the 1988 Constitution and the phenomenon of repersonalization of family law shifted its perspective from the patriarchal, economic and procreational sphere to affectivity. Through a dialectical approach, opposing divergent currents of thought, we find that the polyactive unions are embraced by art. 226 of the Federal Constitution of 1988, since they fulfill the requirements of affection, stability, ostensibility and psychic structuration elected by the doctrine for the formation of a family entity. Monogamy, although it exists as a social principle and a rule for marriage, does not hold as a general principle of family law or as a rule for stable unions. There is no logical-rational justification that supports the discrimination of poliaffective and polygamous relationships as opposed to monogamous relations. The duty of loyalty that arises from a stable union is not violated in the polyaffective union. The ruling on the ADI 4,277 recognized the ontological concept of the family, made way for the recognition of other forms of family entities, by declaring the list on the art. 226 of CF/88 lists only examples.