Same-sex marriage has been legal in Brazil since 16 May 2013, following the National Justice Council decision, which orders notaries of every state to perform same-sex marriages. The ruling is on appeal to the Supreme Court.
Contents
- Civil unions
- Same sex marriage
- National Justice Council ruling
- Proposals in the National Congress
- Individual cases
- Statewide
- Marriage statistics
- Public opinion
- References
Same-sex unions had already been legally recognized since 2004. Following a ruling of the Supreme Court of Brazil, so-called stable unions (Portuguese: união estável) had been available for same-sex couples since May 2011. These unions were granted most of the rights of marriages, including adoption, welfare benefits, pension, inheritance tax, income tax, social security, health benefits, immigration, joint property ownership, hospital and prison visitation, IVF and surrogacy. This decision paved the way for future legislation on same-sex matrimonial rights. Before the nationwide legislation, Alagoas, Bahia, Ceará, Espírito Santo, the Federal District, Mato Grosso do Sul, Paraíba, Paraná, Piauí, Rondônia, Santa Catarina, Santa Rita do Sapucaí (MG), São Paulo, and Sergipe had already allowed same-sex marriages and several unions were converted into full marriages by state judges. In Rio de Janeiro, same-sex couples could also marry but only if local judges agreed with their request.
Nevertheless, on 14 May 2013, the Justice's National Council of Brazil legalized same-sex marriage in the entire country in a 14-1 vote by issuing a ruling that orders all civil registers of the country to perform same-sex marriages and convert any existing civil union into a marriage, if the couple wish so. Joaquim Barbosa, president of the Council of Justice and the Supreme Federal Court, said that notaries cannot continue to refuse to "perform a civil wedding or the conversion of a stable civil union into a marriage between people of the same sex." The ruling was published on 15 May and took effect on 16 May 2013.
Civil unions
In 2004, the first case of recognition of same-sex unions in Brazil occurred with a binational Englishman and a Brazilian. This legal precedent encouraged other couples to marry around the country. At the time of the ceremony, in the form of common-law marriage, this was a status that, until then, was only granted to opposite-sex couples. The couple had lived together for fourteen years, in the Brazilian city of Curitiba.
In 2010, the Ministry of Foreign Affairs authorized Brazilian diplomats to request a diplomatic or service passport and stay visa for same-sex partners. The decision, which includes same-sex and opposite-sex partners, was announced internally to embassies and consulates in over 200 countries. According to the Foreign Ministry, the measure must ensure that employees register their same-sex partners to secure their right to stay outside the country. Now, with the grant of diplomatic passports, in practice, it means that it would be easier for the partner to obtain a residence permit.
Also in 2010, the state-owned Infraero (Brazilian Company of Airport Infrastructure) came to recognize the stable union between same-sex couples for purposes of granting benefits. The change came with the signing of the new Collective Work Agreement. To receive the benefit, the union must be registered through the public notary.
On 5 May 2011, Brazil's Supreme Federal Court ruled that civil unions must be allowed throughout the country. The decision was approved by 10-0; one judge abstained because he had previously spoken publicly in favor of same-sex unions when he was attorney general. The ruling resulted in stable partnerships for same-sex couples having the same financial and social rights enjoyed by those in heterosexual relationships. Civil unions of same-sex couples are guaranteed the same 112 rights as marriages of opposite-sex couples. Brazil's High Court ruling came in response to two lawsuits, one filed by the Rio de Janeiro state Government in 2008 and another in 2009 by the Public Ministry, a group of prosecutors that is part of the federal Government but independent from its executive, legislative and judicial branches. To qualify as a stable union, same-sex couples can officially register as a civil union or prove it the same way some heterosexual couples do, by having a bank account together or living at the same address.
On 17 June 2011, a judge from Goiânia, Jeronymo Pedro Villas Boas, annulled the first civil union that happened in the country, between Liorcino Mendes and Odilio Torres, and also ordered all notaries in Goiânia to not issue civil unions anymore. Villas Boas, who is also a church pastor of the Assembleia de Deus, claimed that same-sex unions are unconstitutional. On 21 June, another judge, Beatriz Figueiredo Franco, cancelled Villas Boas decision, making the union valid again. Concerned, Liorcino Mendes and Odilio Torres signed again another civil union in Rio de Janeiro.
On 7 June 2013, the Brazilian Air Force recognized the stable union of a sergeant and his partner after he presented a notarized deed documenting their relationship; the Air Force did not comment on the recognition, and could not confirm if the relationship was the first same-sex union certified by the branch. On 8 August 2013, Judge Elio Siqueira of the 5th region TRF ruled on appeal that the Brazilian Army must recognize the civil union (performed in January 2012 in Pernambuco) of a service member and his same-sex partner, and must also accord a military spousal pension to the partner. It marked the first time that a state-recognized same-sex union was recognized by the Army.
Same-sex marriage
Marriage law is governed by federal rather than state law and involves issuing of a marriage certificate by a notary. In May 2011, the Supreme Federal Court decided that the present marriage law already did allow for both opposite and same-sex marriages. Based on this decision, many states amended its guidances for issuing marriage certificates to implement the Supreme Court decision and allow same-sex marriage through a notary. In other states notaries who preside over marriage licenses and perform marriages are required by judicial order to provide such services to same-sex couples.
National Justice Council ruling
On 14 May 2013, The Justice's National Council of Brazil legalized same-sex marriage in the entire country in a 14–1 vote, via a ruling that orders all civil registers of the country to perform same-sex marriages and to convert any existing civil unions into marriages if the couple so desires. Joaquim Barbosa, president of the Council of Justice and the Supreme Federal Court, said in the decision that notaries cannot continue to refuse to "perform a civil wedding or the conversion of a stable civil union into a marriage between persons of the same sex."
On 21 May 2013, the Social Christian Party (SCP) lodged an appeal of the National Council's decision in the Supreme Federal Court of Brazil. The party alleged that the Council had committed an abuse of power and that legalising same-sex marriage was a matter exclusively for the legislature to decide. For the time being, the appeal does not affect the Council's original decision in favour of same-sex marriage. On 30 May 2013, the Supreme Federal Court rejected the appeal on technical grounds, stating that the SCP had used the wrong form of appeal. The Court held that the National Council's decision could only be challenged through a "direct action for unconstitutionality" (ação direta de inconstitucionalidade) rather than an action for injunction (mandado de segurança). On 6 June 2013, the SCP re-lodged the appeal. On 28 August 2013, the Procuradoria Geral da República (Attorney General) forwarded to the Supreme Court an opinion in favor of same-sex marriage in Brazil.
Proposals in the National Congress
A Brazilian legislative commission for human rights recommended in October 2013 a measure that would ensure that religious bodies would not be required to solemnize same-sex marriages. The proposal would allow a religious body to decline to officiate at marriages of those "who violate its values, doctrines, and beliefs." The proposal was to have been brought forward in Brazil's Legislature if it was approved by a constitutional committee, though no such change was made prior to the 2014 elections.
In March 2017, the Constitution and Justice Commission of the Brazilian Senate approved a bill modifying the national Civil Code to recognize the 'stable union' between two persons of the same sex and enabling the conversion of that union into marriage. The proposal replaces the definition of family entity, which goes from "stable union between man and woman" to "stable union between two people," and keeps the rest of the original text of the article. The bill would need to be approved by the full Senate and Chamber of Deputies before becoming law.
Individual cases
In several individual cases, marriage licenses were granted, often through the decision of a judge. Notable cases include:
Statewide
The 2011 Supreme court decision gave rise to several states explicitly altering their procedures enabling same-sex couples to marry in a manner that is bureaucratically identical to opposite-sex couples. Those states are listed below:
Marriage statistics
From May to December 2013, approximately 3,800 same-sex marriages were celebrated in the country. Of those marriages, 52% were between women and 48% were between men.
In 2014, 4,854 same-sex couples married in Brazil. 60,7% of these marriages were performed in the Southeast Region, 15,4% in the South Region, 13,6% in the Northeast Region, 6,9% in the Central-West Region and 3,4% in the North Region. 2,050 same-sex marriages were performed in São Paulo, 501 in Rio de Janeiro, 342 in Santa Catarina, 331 in Minas Gerais, 212 in Rio Grande do Sul, 194 in Paraná, 177 in Pernambuco, 162 in Ceará, 134 in Bahia, 130 in Goiás, 129 in the Federal District, 70 in Maranhão, 63 in Espírito Santo, 58 in Pará, 51 in Mato Grosso do Sul, 47 in Rio Grande do Norte, 45 in Amazonas, 31 in Paraíba, 24 in Amapá, 23 in Mato Grosso, 18 in Alagoas, 18 in Rondônia, 14 in Piauí, 11 in Tocantins, 8 in Sergipe, 6 in Acre and 5 in Roraima.
In 2015, 5,614 same-sex marriages were performed in Brazil, representing a 15.7% increase from 2014. Same-sex marriages, however, accounted for only 0.5% of all marriages celebrated that year.
Public opinion
According to Pew Research Center survey, conducted between 4 November 2013 and 14 February 2014, 45% of Brazilians supported same-sex marriage, 48% were opposed.