A equiparação da união estável ao casamento sob uma perspectiva constitucional: limites e possibilidades

Abstract

The last decades were marked by significant changes within the ambit of family in Brazil, among it the sharp growth of the number of cohabitants under the common-law marriage. The appreciation of the affectivity within the family conception made this union to obtain closer legal protection to that given to the matrimony, which gave rise to the inquiry about the duty (or not) to equal the common-law marriage to the matrimony. The present study has as its escope the approach of the topic of the equivalence between the common-law marriage and the matrimony under the constitutional perspective, which was developed by the deductive method. The monographic procedure was adopted. The bibliographic and jurisprudential research technique was applied. The study started from the exposition of the main aspects in the evolution of the 20th Century family until these very days, with the presentation of the guiding principles of the Family Rights provided by the Carta Magna of 1988, also considering the constitutional acknowledge of the affection legality. From the exposition of the differences and likeness of the legal treatment conferred on the spouse and the companion, it was concluded that the full equivalence between the common-law marriage and the matrimony proves to be inadequate. The equal treatment is only relevant towards the rules that protect the affective relation of the couple, once the affection is present both in the relationship between spouses and also companions. As of the rules of the matrimonial formalities, as well as its form of constitution, the equivalence proves to be undue, from the point of view of the need to respect the informal essence of the institute of the common-law marriage.