União estável paralela à luz do pluralismo familiar: um estudo sobre a evolução jurisprudencial brasileira no novo milênio sob o prisma do recurso extraordinário 883.168

Abstract

In Brazil, the family has no longer been recognized only through marriage, as it was for a long time, but rather through its plurality of forms. By introducing other family models into legislation, the Federal Constitution of 1988 generated a paradigmatic rupture in the legal sphere and expanded the concept of family. Thus, the principle of family pluralism emerged, which became a fundamental pillar in the process of expanding the family concept initiated by Brazilian courts, so that other unions not prescribed by law could also be recognized as family entities, including parallel stable unions, which is understood as a stable union at the same time as a marriage or another stable union, whether or not the concomitant partners are aware of the existence of the other. When making decisions in favor of recognizing the parallel stable union as a form of family, the first and second instance judges stated that the family institution needed to be recognized based on its various dimensions, as well as for plural unions being a real and existing fact in society. However, when judging the Extraordinary Appeal No. 883,168, the Supreme Court understood that parallel unions could not be recognized as a family, because the Brazilian legislation would value monogamous relationships and the exclusivity, loyalty, and fidelity between a pair would be constituent elements of a family entity. Given this, the present work adopted the following question: what are the legal consequences generated by the judgment of the Extraordinary Appeal No. 883,168 on cases of parallel stable unions in Brazil? To answer it, the deductive approach was used to analyze the general context of the topic and subsequently restrict the analysis to the legal effects caused by the Extraordinary Appeal judgment in cases of parallel stable unions. In the procedure, historical, comparative, and monographic methods were adopted. Furthermore, as research techniques, bibliographic and documentary research were used. Besides, the objective of the study was based on the analysis of the legal effects caused by the judgment in question. Finally, with the research was possible to verify that the Supreme Court decision went against the decisions that had been made by the lower courts, and by denying that the parallel stable union could be recognized as a family entity, it resulted in the loss of rights, such as alimony, pensions rights, inheritances, and so on. In this study, therefore, it was concluded that the Supreme Court reached an contrary understanding to the core of today's family and delegitimized, disqualified, and marginalized parallel unions by not recognizing them as families.