The lack of proof of good faith prevents the recognition of a stable union with a married man who is not de facto separated. This was the understanding applied by the 4th Panel of the Superior Court of Justice in excluding from an inheritance a woman who maintained a romantic relationship for 17 years with a married man.
According to the reporting justice in the case, Justice Luis Felipe Salomão, it is not credible that, after 17 years of relationship, the plaintiff in the action did not know that the deceased, in addition to being married, maintained cohabitation with his wife, from whom he was not de facto separated.
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For the justice, the central point of the controversy lies in determining whether there was concubinage in good faith – a situation in which the woman would not know the partner’s real situation.
“The resolution of the controversy raised in the records, therefore, requires only the correct legal qualification of the ostensible, continuous, and lasting affective cohabitation established with a married person who was not de facto separated: concubinage or stable union,” he said.
The court of origin upheld the judgment that ruled the woman’s claim well founded, considering the putative stable union demonstrated and ordering the partition of 50% of the assets acquired during the cohabitation, save for the widow’s marital share (meação).
However, at the STJ, in a vote unanimously followed by the panel, Justice Salomão stated that the woman was unable to prove the occurrence of concubinage in good faith, which, according to authoritative doctrine, could give rise to the analogous application of the rule on putative marriage.
Re-valuation
Salomão emphasized that the entire factual framework binding the resolution of the controversy is transcribed in the appealed judgment, including the reproduction of statements and testimonies, “which makes possible its re-valuation by the STJ in order to attribute to it a different legal qualification, without the need for the re-examination of the body of evidence prohibited by Precedent (Súmula) 7.”
Among the facts narrated in the judgment, the justice cited that both worked in the same public office, and the woman would have heard that he was married.
“Analyzing the factual picture perfectly outlined by the court of origin, I consider that it is not possible to extract the premise that the plaintiff maintained a continuous and lasting romantic relationship with the de cujus without being aware that he was married and was not de facto separated from his wife,” he said.
Stable union with a married man
Salomão emphasized that the system created by the legislature presupposes the exclusivity of a solid relationship for the characterization of a stable union. “One could say that the greatest obstacle to the recognition of a stable union between persons without any kinship would be the existence of a marriage,” he summarized.
The justice cited precedents of the STJ which, by force of the provision of paragraph 1 of Article 1,723 of the Civil Code, affirm the impossibility of recognizing a stable union of a married person who is not de facto separated, which demonstrates the prohibition on attributing legal effects to parallel affective relationships, such as the one that occurred in the case under review.
The number of this case is not disclosed by reason of judicial secrecy.
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