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Kaleidoscope Family

Kaleidoscope Family

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Published by Marcelo Asamura
Kaleidoscope Family
Kaleidoscope Family

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Categories:Types, Business/Law
Published by: Marcelo Asamura on Jul 20, 2010
Copyright:Attribution Non-commercial

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10/25/2012

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KALEIDOSCOPE FAMILYAntonio Rulli NetoRenato Asamura Azevedo1.Reality of LifeFor at least two decades, Family Law has been experiencing a much different scene from that of the past and from that one imagined.There is still a much puritan, sacred and monogamous family view, which does notcoincide with a social reality. Thus, we cannot simply close our eyes and do not admit these new family configurations as integrating reality.Society is changing and hymenolatry has given place to the search for happinessand Law cannot turn a blind eye to reality.Loss of virginity before wedding, homosexuality, divorce and other themes treated as taboos are part of people’s lives now.From a legislation that, at first , wouldn
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t admit the break of the matrimony bonds, we, over the time, had the acknowledgment by the courts of the effects arising from the homoaffective relationships , the adoption of a child by homoaffective 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 relationships (affective parallelism) have been analyzed and recognized in Brazil.Monogamy, even yet in a certain way imposed by law, is not anymore something socially or morally relevant.Now, we question: how to proceed before so many new ways of relationship? The main question is how family relationships and assets disposals will be dealt withfrom now on.We already know that the idea of family is different from the one we had decadesago, this is no news. Father, mother and children are not only the sole mannerof constitution of households.And what to tell about the cases in which there is a household coexisting in a same family? Fiction? No, reality.This work will tell about the socio-affective relationship in the kaleidoscope family, limited to the theme, in which it is also relevant property and inheritance issues. For that, we shall make brief considerations and comparisons with other families.In the affective parallelism, it has been admitted the existence of parallel relationship. The Court of Justice of the State of Rio Grande do Sul, when judgingthe appeal n. 70015693476, unanimously kept the recognition of double relationships, as per decision issued by the 1st Probate Division of Porto Alegre.The Reporting Judge himself emphasizes “this present case is the total evidencethat one person can keep two families in parallel, and evidences the affectio maritalis 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 aco-habiting being developed in the Circuit Court of Porto Alegre, as this section of the initial petition: "It arises clearly from this the coexistence of two familiar cells for 17 years. The deceased was formally married since 1961, relationship that resulted in the birth of a son. Simultaneously to this marriage, in1987, the man started another family, with his first child born in 1985, i.e., before the initial milestone of the second relationship and when he only dated tohis second wife. Other situation is the fact that both women knew the existenceof each other. The son of the first marriage also knew about his father’s relationship, as well as the existence of brothers born from it. There is a photograph (enclosed) of the three children together. All got on well with each other: the deceased (when alive), both women and the three children generated from the two different beds".Basically, there is nothing to do with accepting or rejecting the new constitutions for family, but to find paths for eventual problems that might arise from them.2.Parallel Relationships – affective parallelism, poliamorous or family parallelism - some important issuesBefore discussing the kaleidoscope family, we need to compare them with other families. 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 Rio Grande do Sul that such relationships started to be discussed with more intensity.In doctrine, Guilherme Calmon Nogueira da Gama discussed the theme and admittedthe putative co-habitation, understanding the fact that the concubine is not aware of the existence of the first co-habitation, acting in good-faith, permitting 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. No one is bound to live with another person. Besides this, if the second wife (orsecond person) also collaborates for the family support or the increase of assets of the familiar group (even if composed of different cores), cannot be laid-aside, then.If we take into account only the obligational issue, we could have something like “the partner contributing for the business”, and it is applicable and fair the manner that has been deciding in the cases of affective parallelism, with equal 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 Siqueira Trindade, concludes the possibility of affective parallelism: “relationship kept by a man over 16 years, although he was already married for 30 years, isthe total evidence that one person can keep two families, and it is possible tokeep co-habitation together with a marriage”.In his vote, he explains that “the man, already deceased, had two children withhis wife, from whom he had never separated in fact, and two daughters with a snack bar employee of his own, that lived in the same building of the bar. Althoughunderstanding the exceptional situation, the magistrate pointed out several elements that evidence parallel lives, stating he was before a familiar core together with his family, with two addresses, photographs that proved social and familiar living with the co-habitant and his wife. The claimant was responsible for his hospital internation. His wife and children of his marriage paid his expenseswith funeral. Both receive the Social Security pension”.The Associate Justice further explains the relationship was from 1980 through 1996, 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, disregarding the condition of common law marriage set forth in the article 1.727 ofthe Civil Code.Such assumptions have been treated in previous appeals (70019387455-07 and 70022775605-08), which decisions had as Reporting Judge the Associate Justice Rui Portanova.Also in a recent decision (11.24.2008), the Judge of the 4th Probate Court of Porto Velho, Theodoro Naujorks Neto, recognized the family parallelism. In his sentence, he explains that “ethology, biology and genetics does not confirm monogamy as a dominant standard among species, including human" and also that "although it is not well received by great part of the western society, people can lovemore than one person at a same time”.In affective parallelism situations there is a pivot, or a central figure and other people linked to it, i.e., someone tied by the affection of more than one person. 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 womanunited to two in parallel or a man bound to a woman and other man. There is no reason for not admitting such relationships. We use here the doctrine of Roger Raupp Rios: “suggesting the possibility of disrespect or prejudice to a human being, 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 ofthe related people.In any manner, all these most recent decisions admit polyamory, or the possibility of affection towards more than one person aiming at constituting a family andjoint effort.2.1.Parallel Relationships and the article 1727 of the Brazilian Civil CodeAccording to article 1.727 of the Brazilian Civil CodeNon-eventual relationships between a man and a woman, impaired to marriage, constitute a common law marriageSincerely, the word concubine is old-fashioned and is clearly prejudice. What isimportant to us, though, in this point of view is to analyze the case reportedby 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 faith, principle that governs our system. In the appeal n. 70015693476, judged by the Court of the State of Rio Grande do Sul, there was not the application of thearticle 1.727 of the Civil Code, since the parallel relationship happened beforeits effectiveness.In all cases of polyamory or affective parallelism, it shall only be configureda family parallelism in the situations that the parallelism really appears in the intention of formation of a joint life and in those in which there is mutual collaboration.Regarding the parental relationships, there is not much to discuss.It is clear, as in the other cases, that the discussion on the parallelism onlybecomes known when regarding the assets partition.Therefore, we cannot use the article 1.727 as a manner of breaking the law or principles, mainly to illicit enrichment one in detriment to the other of this triangle. It would be an absurd to apply the article 1.727 in prejudice of the familiar and patrimonial common effort of the people involved.There is, on the theme of the malicious misconduct and bad faith to break the partition, the article of Priscila Corrêa da Fonseca, which sustains what has beensaid:“(...) behavior that requires that each person, in the partition context, claimsthat these proceed with honesty and reciprocal consideration, hereby assure that the distortion to these principles results, as per the new civil code, in theabusive and arbitrary exercise of a right. (...)”

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