KALEIDOSCOPE FAMILY

Antonio Rulli Neto

Renato Asamura Azevedo

1. Reality of Life
For at least two decades, Family Law has been experiencing a much different scen
e from that of the past and from that one imagined.
There is still a much puritan, sacred and monogamous family view, which does not
coincide with a social reality. Thus, we cannot simply close our eyes and do no
t admit these new family configurations as integrating reality.
Society is changing and hymenolatry has given place to the search for happiness
and Law cannot turn a blind eye to reality.
Loss of virginity before wedding, homosexuality, divorce and other themes treate
d as taboos are part of people’s lives now.
From a legislation that, at first , wouldn t admit the break of the matrimony bo
nds, we, over the time, had the acknowledgment by the courts of the effects aris
ing from the homoaffective relationships , the adoption of a child by homoaffect
ive couples and, most recently, the acknowledgment of concurrent relationships
, to which we shall further refer in this document.
A life marriage of the last century is not perpetual anymore and parallel relati
onships (affective parallelism) have been analyzed and recognized in Brazil.
Monogamy, even yet in a certain way imposed by law, is not anymore something soc
ially or morally relevant.
Now, we question: how to proceed before so many new ways of relationship? The ma
in question is how family relationships and assets disposals will be dealt with
from now on.
We already know that the idea of family is different from the one we had decades
ago, this is no news. Father, mother and children are not only the sole manner
of constitution of households.
And what to tell about the cases in which there is a household coexisting in a s
ame family? Fiction? No, reality.
This work will tell about the socio-affective relationship in the kaleidoscope f
amily, limited to the theme, in which it is also relevant property and inheritan
ce issues. For that, we shall make brief considerations and comparisons with oth
er families.
In the affective parallelism, it has been admitted the existence of parallel rel
ationship. The Court of Justice of the State of Rio Grande do Sul, when judging
the appeal n. 70015693476, unanimously kept the recognition of double relationsh
ips, as per decision issued by the 1st Probate Division of Porto Alegre.
The Reporting Judge himself emphasizes “this present case is the total evidence
that one person can keep two families in parallel, and evidences the affectio m
aritalis with both, and it seems that only some people have the ability to divid
e between such families as if they were two people, and not only one”.
The news recently published in a famous website in the area is entitled “A man,
two women, three kids, two beds” which tells about a suit for recognition of a
co-habiting being developed in the Circuit Court of Porto Alegre, as this sectio
n of the initial petition: "It arises clearly from this the coexistence of two f
amiliar cells for 17 years. The deceased was formally married since 1961, relati
onship that resulted in the birth of a son. Simultaneously to this marriage, in
1987, the man started another family, with his first child born in 1985, i.e., b
efore the initial milestone of the second relationship and when he only dated to
his second wife. Other situation is the fact that both women knew the existence
of each other. The son of the first marriage also knew about his father’s relat
ionship, as well as the existence of brothers born from it. There is a photograp
h (enclosed) of the three children together. All got on well with each other: th
e deceased (when alive), both women and the three children generated from the tw
o different beds".
Basically, there is nothing to do with accepting or rejecting the new constituti
ons for family, but to find paths for eventual problems that might arise from th
em.

2. Parallel Relationships – affective parallelism, poliamorous or family pa

rallelism - some important issues
Before discussing the kaleidoscope family, we need to compare them with other fa
milies. Parallel relationships are already acknowledged, as told above (item 1,
above)and it has been after decisions of the Court of Justice of the State of Ri
o Grande do Sul that such relationships started to be discussed with more intens
ity.
In doctrine, Guilherme Calmon Nogueira da Gama discussed the theme and admitted
the putative co-habitation, understanding the fact that the concubine is not aw
are of the existence of the first co-habitation, acting in good-faith, permittin
g this to be a putative co-habitation.
We understand that, however, in some cases, mainly when the wife / co-habitant,
is inert and accepts the situation, and cannot be opposed to it in the future. N
o one is bound to live with another person. Besides this, if the second wife (or
second person) also collaborates for the family support or the increase of asse
ts of the familiar group (even if composed of different cores), cannot be laid-a
side, then.
If we take into account only the obligational issue, we could have something li
ke “the partner contributing for the business”, and it is applicable and fair th
e manner that has been deciding in the cases of affective parallelism, with equa
l assets division.
Bellow some of the main claims that is being judged about parallel relationships
.
In the first of them, the Reporting Judge, the Associate Justice José Ataídes Si
queira Trindade, concludes the possibility of affective parallelism: “relationsh
ip kept by a man over 16 years, although he was already married for 30 years, is
the total evidence that one person can keep two families, and it is possible to
keep co-habitation together with a marriage”.
In his vote, he explains that “the man, already deceased, had two children with
his wife, from whom he had never separated in fact, and two daughters with a sna
ck bar employee of his own, that lived in the same building of the bar. Although
understanding the exceptional situation, the magistrate pointed out several ele
ments that evidence parallel lives, stating he was before a familiar core togeth
er with his family, with two addresses, photographs that proved social and famil
iar living with the co-habitant and his wife. The claimant was responsible for h
is hospital internation. His wife and children of his marriage paid his expenses
with funeral. Both receive the Social Security pension”.
The Associate Justice further explains the relationship was from 1980 through 19
96, when the man died, with part of it in effect due the Federal Constitution of
 1988, which acknowledged co-habitation to the condition of familiar entity, dis
regarding the condition of common law marriage set forth in the article 1.727 of
the Civil Code.
Such assumptions have been treated in previous appeals (70019387455-07 and 70022
775605-08), which decisions had as Reporting Judge the Associate Justice Rui Por
tanova.
Also in a recent decision (11.24.2008), the Judge of the 4th Probate Court of Po
rto Velho, Theodoro Naujorks Neto, recognized the family parallelism. In his s
entence, he explains that “ethology, biology and genetics does not confirm monog
amy as a dominant standard among species, including human" and also that "althou
gh it is not well received by great part of the western society, people can love
more than one person at a same time”.
In affective parallelism situations there is a pivot, or a central figure and ot
her people linked to it, i.e., someone tied by the affection of more than one pe
rson. In the cases described above, we have men with more than one woman (wife,
co-habitant) tied to them.
Nothing avoid, however, homoaffective parallel relationships or mixed – a woman
united to two in parallel or a man bound to a woman and other man. There is no r
eason for not admitting such relationships. We use here the doctrine of Roger Ra
upp Rios: “suggesting the possibility of disrespect or prejudice to a human bein
g, due his/her sexual orientation means an indignant treatment to a human being.
”
Such parallel relationships can be also called polyamory (Pablo Stolze Gagliano)
, but they are only subject of legal studies when regarding assets partition of
the related people.
In any manner, all these most recent decisions admit polyamory, or the possibili
ty of affection towards more than one person aiming at constituting a family and
joint effort.
2.1. Parallel Relationships and the article 1727 of the Brazilian Civil Code
According to article 1.727 of the Brazilian Civil Code
Non-eventual relationships between a man and a woman, impaired to marriage, con
stitute a common law marriage
Sincerely, the word concubine is old-fashioned and is clearly prejudice. What is
important to us, though, in this point of view is to analyze the case reported
by reason of the article 1.727 of the Brazilian Civil Code.
What seems to us is that a good reason for good part of this is in the good fait
h, principle that governs our system. In the appeal n. 70015693476, judged by th
e Court of the State of Rio Grande do Sul, there was not the application of the
article 1.727 of the Civil Code, since the parallel relationship happened before
its effectiveness.
In all cases of polyamory or affective parallelism, it shall only be configured
a family parallelism in the situations that the parallelism really appears in th
e intention of formation of a joint life and in those in which there is mutual c
ollaboration.
Regarding the parental relationships, there is not much to discuss.
It is clear, as in the other cases, that the discussion on the parallelism only
becomes known when regarding the assets partition.
Therefore, we cannot use the article 1.727 as a manner of breaking the law or pr
inciples, mainly to illicit enrichment one in detriment to the other of this tri
angle. It would be an absurd to apply the article 1.727 in prejudice of the fami
liar and patrimonial common effort of the people involved.
There is, on the theme of the malicious misconduct and bad faith to break the pa
rtition, the article of Priscila Corrêa da Fonseca, which sustains what has been
said:
“(...) behavior that requires that each person, in the partition context, claims
that these proceed with honesty and reciprocal consideration, hereby assure tha
t the distortion to these principles results, as per the new civil code, in the
abusive and arbitrary exercise of a right. (...)”
The application of the article 1.727 will only be possible to avoid opportunism,
a figure that gets nearer of a guilty, for example, dissociated from affection
or intention of living as a family.
Such situations are, in most cases, perceptible and possible to be shown. For th
at, it is necessary to demonstrate the stability of co-habitation, its publicity
and affectivity.
Some people lead a double life. Some may remind the figure of the travelling Sal
esman lived by Ney Latorraca in the famous Brazilian series Rabo de Saia . Let’s
imagine such situation today. A man who travel to sell different products and k
ept in the places that he used to work three families, and his wives weren’t awa
re of each other. In such situation, the lies told by the man could only be used
against himself. Each of the three women believed to be the one, contributing f
or the construction of the family and property.
So, using the article 1.727 to release the Salesman would be contrary to the pri
nciple of good-faith, illicit enriching of some people in prejudice of other peo
ple, and the man would be the suffering of the women. There was not a simple fli
rt, but the coexistence of three families in that miniseries.
For this reason, the article 1.727 must be applied taking into account the evide
nces in the context, valuating the norm from that, not generating illicit enrich
ment or lack of good-faith. The article 1.727, indeed, exceptions the formation
of bonds, which is a rule, on the contrary, the provision would be unnecessary.
However, when analyzing the affective parallelism, we can conclude: (a) the poss
ibility of affection directed to more than one person; and (b) the possibility o
f collaboration of more than one person for the family and property formation.

3. Mosaic families and parental relationships

Neither they are an object of this study itself, nor great news, but we can make
a comment on them regarding parental relationships.
Veja Magazine in 2004 brought the headline: “My children stepfather and my wife
s children – Difficulties in situating the flow chart of the modern families”, i
n which it was about the mosaic families, considering that “separations, divorce
s and new marriages, the flow chart of the modern families is other, completely
different. About it, we can talk about “my mother’s husband”, “brother on my mot
her’s side”, “children of father’s mother” etc., in a puzzle of relatives and ha
lf-relatives that specialists baptized of "mosaic family”.
These “reconstructed families are each more frequent in the national scene, as a
n example, families that the husband and the wife bring to the new relationship
the children of previous relationships, and they are summed to the new children
that are born from this new marriage. Suddenly, children, stepchildren, stepmoth
er, stepfather, ex-husband, ex-wife and many grandparents. We give the name of “
mosaic family” to the family arrangement in which the children of the couple are
part of a chart formed by brothers, half-brothers and not brothers, since child
ren from previous marriages of the husband and the wife are not brothers, but th
ey are half-brothers of the new children of the couple. In this manner, not all
the members of the mosaic family are relatives to each other, but all have a par
ental degree with the children resulting from the reconstituted couple. The mosa
ic family is only a kind of family and/or domestic arrangement within the diagra
m of possible arrangements in a society each time more marked by plurality and b
y innovative dynamics, different from the standard model”.
What is seen in the mosaic family or pluriparental are the “significant interdep
endencies regarding the members of previous families they migrated from. Marking
milestones arising from alimony, right to visit, parental power, up to simple v
acations, they present a grade of complexity, widened by intercrossing of intere
sts, rights and duties of several members. (...) The permanent character of inte
rdependence is, as a rule, determined by the presence of children, requiring fro
m the biological and affective parents a coherence of enabling actions of a more
or less family harmony”.
In mosaic families, there is the figure of the socioaffective relationship. Some
people disagree with such, based on the article 1.593 of the Brazilian Civil Co
de.
Nevertheless, this is meaningless. The article 1.593 acknowledges that parental
relations are natural or civil, as resulting from consanguinity or other origin.
When using the expression other origin, the legislator left the text for acknow
ledgment of parental relations in situations not expressly written. Obviously, i
t forms the civil parental relations of non-consanguinity, within the assumption
of the socio-affective relations.
Brazilian system has privileged, since the Constitution of 1988, the dignity and
preservation of family and well-being (article 1st, III; 5th, head, X, XI, 6th,
head, besides the articles 226 and 227).
The most updated doctrine admits de-biologization of paternity, mainly João Bapt
ista Villela (paternity as a cultural fact, since 1979); Regina Beatriz Tavares
da Silva acknowledging the expression of other origin gives grounds to the ack
nowledgment of non-biological or socio-affective paternity.
Paulo Luiz Netto Lobo explains that it “imposes a differentiation between the bi
ological and paternity/maternity". In other words, filiation is not a biological
determinism, yet of the human nature the impulse of procreation. In most of the
cases, filiation derives from biological relationship; however, it emerges from
a permanent cultural and affective construction, which is made in cohabitation
and responsibility.”
Also Maria Berenice Dias, to whom “paternity derives from the state of filiation
, notwithstanding its origin, if biological or affective. The Idea of paternity
is much more grounded in love than submitted to biological determinism. Also, re
garding filiation, it is privileged the principle of appearance.”
Such interpretation of the article 1.593 has also been object of the discussion
approved in the III Congress of Civil Rights in 2004, in which it had been ackno
wledged the guardianship of a child (socio-affective parenting) as the modality
of civil parental relationship. Eduardo de Oliveira Leite contributes to the acc
eptance of the idea of possession of the state of a child. Luiz Edson Fachin say
s the same.
In reconstituted families, there is not doubt on the formation of socio-affectiv
e parenting relationship, revealed by the guardianship of the state of a child a
s a generator of legal effects. If the subject creates a person as a child of h
is own, he assumes the socio-affective paternity, and presumably by option. Also
good-faith is a component for family relationships, and only this can lead to t
he recognition of the socio-affective parental relationship.
The man raises a child of his wife (partner) as if he was his son, for example,
assuming the effects of his acts, and he cannot deny such condition, and the sam
e regards the homo-affective relationships. In a judgment of the Court of Justic
e of the State of Rio Grande do Sul, prevailed the biological filiation vis-a-vi
s the socio-affective.
DENIEAL OF PATERNITY. ANNULMENT OF REGISTRY. IMPOSSIBILITY. CHARACTERIZATION OF
SOCIO-AFFEECTIVE FILIATION. If evidenced the socio-affective filiation regarding
the nonexistence of the biological bond, it prevails the first vis-a-vis the se
cond. The act of acknowledgement of a son is irrevocable and the annulment of th
e registry depends on full demonstration of a defect of the legal act, nonexiste
nt in the concrete case. PRELIMINARY REJECTED, ACCEPTANCE DENIED TO THE APPEAL.
UNANIMOUS DECISION.
Thus, there are different cases, but the affection is the sole bond that tells i
f there is or not parental relationship, and it may, with that, accept a child w
ith two fathers or two mothers, for instance. Addressing the theme of the mosaic
family, or reconstituted, make us to conclude for the acceptance of the socio-a
ffective filiation.
4. An unexpected situation – kaleidoscope families
Recently, it has been becoming public the situation, including by news on plural
relationships, in which we see the plural cohabitation of fathers, mothers and
children; cohabitation of joint couples.
In these cases, there is not a center related to more than one person, as in the
simple affective parallelism, but interrelated couples and their children (some
times in cohabitation). Narrated cases are those in which you can derive a diffe
rent situation from that being discussed, but with some points in common.
Luiz Fernando Veríssimo wrote the chronicle entitled "Family Tree", in which we
can see a new family paradigm.
When telling about an affective parallelism and acknowledgment, we demonstrate t
he possibility of the affection to be the link in the relationships and be direc
ted to a subject for one, two or more subjects. Thus, perfectly possible is the
formation of a family with more than one affective centre. As we said, there is
and there is not cohabitation of affective centres.
The Dutch radio narrated the case that involves two homoaffective centres, one c
omposed by a Brazilian:
“The brothers Max and Robin van Gorp, of three years and eight months, respectiv
ely, have two fathers and two mothers. They also have two homes. They divide the
time between the house of their biological mother, Annemiek van Gorp, and the a
doptive mother, Jeanine van Barlingen, and the house of the biological father, J
onatas de Lemos, and the emotional father Hubert Roza. Two homosexual couples te
ll the Radio Nederland about reproduction and education of their children in com
mon. ... Jeanine van Barlingen is the partner of Annemiek van Gorp. They wanted
children, but needed a donor of sperms. They consulted a friend couple - Jonata
s de Lemos and Hubert Roza – if one of them could be the father of their sons, a
s per explained by Jeanine, the non-biological mother of Max and Robin: ‘We aske
d if Jonatas or Hubert would like to be the donors. At first, we had no preferen
ce, and they could choose who would be the donor. We have agreed that Annemieke
would be the biological mother.’ For Annemieke van Gorp, it

was important since
the beginning the donor would play the role of a father: We always had the ide
a that the presence of a father in their lives would be important. We know histo
ry of children that didn’t have a father and we know that, in practice, it is be
tter for a child a father to be near. And they won two fathers, which is great.’
... The male couple decided that Jonatas de Lemos would be the biological fathe
r. Jonatas is Brazilian citizen. (...) The mothers have the official guardianshi
p, since, “lawfully, in Deutschland, only two people - no matter gender - can be
responsible for a child. When two women have a relationship and they want to ra
ise a child together, the biological mother has the automatic guardianship of a
child. Her partner can adopt a child and, in this manner, be responsible for the
child. It is the case of Max and Robin. The biological mother, i.e., Annemiek,
is their mother. Jeanine adopted the children as soon they were born and, theref
ore, they both have their guardianship. The biological father, Jonatas, and the
emotional father, Hubert, are tutors of the boys, i.e., they can only have a chi
ld guardianship if something happens to the mothers. Therefore, in case of this
family, in which the non-official parents also play an important part in their e
ducational life, everything works in confidence between both homosexual couples.
(...) Max and Robin, thus, have two fathers and two mothers, and the masculine
couple lead its life in a house and the female couple in another house. They spe
nd much time in the mothers’ house, but their situation is different from the ca
se of children that have a father and a mother that one day lived together and a
re separated, as per Jeanine tells: ‘If we have to compare to a family in which
parents are separated, indeed, this can be much more difficult and painful for t
he children if they are not at home. And for us it is exactly very positive. Wha
t we both haven t thought is how much children are important also for Jonatas an
d Hubert. I see this as an “extra” for all of us. What happens is that children
now have a large family. And Max does not make any difference, he understands th
at all of us are his parents and they are used to it”.
There are cases, as recently noticed by the Professor and Member of the IBDFAM J
orge Luiz Ribeiro de Medeiros, in Jornal do Brasil, which call the attention
to an unusual situation. A homoaffetive couple, A.M. and M.K., in the end of Apr
il, “gave birth in São Paulo to the twins E. and A.L., generated by A.M. with eg
gs given by M.K., fertilized by spermatozoon of an anonymous donor. However, the
y could not proceed the registry of the child so far due to the negative answer
of the Registry in preceding it in the name of both mothers and no father. The c
ase has been sent to the Judiciary, that denied the preliminary motion and there
is no definitive pronunciation so far. (((ja nao teve decisao???)))
Other more evident situations are of couples that live and cohabit with plural o
r multiple relationships. A and B are married, they cohabit with a woman C and o
ther couple, all together and with common children.
How to deal with such situations? And the case narrated of two mothers and two f
athers? That’s the challenge that starts to happen in the kaleidoscope families
or of multiple relationships.
There is still a prejudice regarding situations as those of the kaleidoscope fam
ilies. Regarding parental relationships, starting from the idea that it is a cul
tural fact (João Baptista Villela), or an option of affection (that’s the reason
for the socio-affective parental relationship), notwithstanding the biological
relationship, must prevail that one derived from the will and by the affection i
tself (qualified, i.e., that one intended for constitution of a family and commo
n property); and not forgetting the best interest of the child should be taken i
nto account.
It has been such assumptions of the article 1.593 of the Brazilian Civil Code wh
en using the expression with other origin wanted to preserve. As a result, consi
dering the existence of kaleidoscope families, besides the prohibition or limita
tion regarding the parental relationship, it can be attributed to more than one
father or more than a mother; or to two fathers and two mothers. Who chooses thi
s socio-affective filiation, cannot deny its effects.
Therefore, in case of the confuse supposition above narrated, it can be easily s
olved with the idea of socio-affective filiation and better interest of the chil
d.
From this, as in the reconstituted families, there is the formation of the socio
-affective parental relationship with all its effects.
The article 1.694 of the Brazilian Civil Code, for instance, acknowledges the ob
ligation of feeding the parents, without specifying the parents are (if by consa
nguinity or affinity) . The article 1.595, paragraphs 1st and 2nd, keep the bond
s of affinity the same after dissolution of marriage or co-habitation. Although
it has some resistance in the doctrine to the recognition of alimony in situati
ons of relationship for affinity or socio-affective, there is no legal prohibiti
on. This seems more an issue of prejudice and fear since the list of subjects ev
entually in debt of alimony would increase.
The sole problem that is presented in the multiple filiation (biological and soc
io-affective) is to include people with no parental responsibility or that has n
othing to do with the best interest. Either the inclusion of many people that co
uld generate confusion or dilemmas in child upbringing. For instance, if the chi
ld does have two fathers and two mothers, there must have no divergences regardi
ng education, religious background, etc. The Dutch case emphasizes that only two
people could be responsible for the child, what minimizes this problem.
In kaleidoscope families, even if we do admit that only two components of the fa
mily are responsible, the family duties are kept due to the socio-affective rela
tionship. Thus, duties will be of all components of the family, even if from non
-cohabitant affective cores. We understand that cases as that of the Dutch and t
hat one narrated in the Jornal do Brasil, notwithstanding the affective core exe
rcising guardianship, family duties should be of all.
Not only the blood relation enables the exercise of parenting, but the affective
relationships and partnership are more important than the biological bond. The
problem is only in situations in which there can be conflicts between the member
s of the affective or familiar core, always in the best interest of the child.
What should be taken into account is that the fact that no one takes part in suc
h relationships without knowing their responsibilities. When assuming a role in
the kaleidoscope family, the subject is aware from the socio-affective bond. In
spite of the resistance to the existence of alimony between people linked by the
affinity bond, we understand that, before the evolution of the idea of family,
the article 1.593, which tells about the protection to the person, alimony is du
e between components of the kaleidoscope family, and all are part of a true “par
ental web” (expression of Luiz Edson Fachin).
The evolution of family and all the cases narrated are enough for such positioni
ng to be rethought and for the promised constitutional protection to the family,
notwithstanding the form that it is constituted.
Therefore, the guardianship of a child has a double character, and it is applied
to the father and to the son, reciprocally, the same regarding socio-affective
relationship. It derives from it all the family duties, as told before.
It must always be taken into account the socio-affective issue, the collaboratio
n between the integrants of the family, even from different socio-affective core
s, and in the best interest of the children, notwithstanding biological and mora
l issues.
Regarding property and inheritance issues, and mainly the first, in the kaleidos
cope families, it is evidenced a common effort, and proportion should be taken i
nto account, mainly when the family is in co-habitation or if there is a conside
rable collaboration between the affective cores. But such theme will be develope
d later in an specific paper. In the present one we have limited to the analysis
of socio-affective relationship in kaleidoscope families.
Thus, kaleidoscope families may bring the formation of socio-affective relations
hip among their integrants, mainly when there is co-habitation between the affec
tive cores, but not exclusively in such assumption. In all situations, besides t
he affective bond there is the need of a concrete situation of best interest of
the children, essential for the theme.
Finally, as we have said, the scope is the protection of the family and the huma
n dignity, accepting these new families and eliminating social prejudice.

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0C8914326?types=A&, acesso em janeiro de 2009.