(July 5, 2018) The National Council of Justice (Conselho Nacional de Justiça, CNJ) decided by a majority of votes that registrar offices (cartórios) cannot register affective relationships between multiple persons as stable unions. The decision was made on June 26, 2018, in response to a request made in 2016 by the Association of Family Law and Succession (Associação de Direito de Família e das Sucessões, ADFAS) seeking a prohibition on recognizing and recording such relationships. The request argued that two registrar offices in the state of São Paulo had recorded deeds of multiaffective stable unions, which is not allowed by the legislation. (Cartórios Não Podem Registrar Relações Poliafetivas como União Estável, diz CNJ, ISTO É (June 26, 2018).)
In delivering the result, the president of the CNJ, Justice Carmen Lúcia, highlighted that it is not the Council’s duty to authorize or prohibit multiunions, but to judge whether registrar offices can record relationships between three or more people. “Here we are not dealing with the relationship between people, but the power of an office to receive the deed,” said Carmen Lucia. (Id. (translation by author).)
For the purpose of state protection, article 226(§ 3) of the Brazilian Constitution (CONSTITUIÇÃO FEDERAL [C.F.], Presidency of the Republic website) recognizes a stable union between a man and a woman as a family entity and further establishes that the law must facilitate the conversion of such a relationship into a marriage.
Law No. 9,278 of May 19, 1996 (Lei No. 9.278 de 10 de Maio de 1996, art. 1, Presidency of the Republic website) implements article 226(§ 3) of the Constitution by recognizing as a family entity a durable, public, and continuous relationship between a man and a woman that was established with the purpose of constituting a family. The Law also sets forth, inter alia, the rights and duties of the companions (art. 2), property division (art. 5), alimony (art. 7), and court jurisdiction (art. 9). Additionally, article 8 of Law No. 9,278 states that the partners in a stable union may, by mutual agreement and at any time, request that the civil registrar’s office to convert their stable union into a marriage.
Federal Supreme Court Decision
On May 5, 2011, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) held that same-sex couples are included within the definition of “stable union” found in article 226(§3) of the Brazilian Constitution. (STF, ADI 4.277, STF, ADPF 132, Supreme Federal Court website.)
Although there is no law expressly allowing same-sex marriage in the country, on May 14, 2013, the CNJ approved Resolution No. 175 (Resolução CNJ No. 175, de 14 de Maio de 2013, CNJ website), which prohibits the competent authorities from refusing to license or celebrate the civil marriages of persons of the same sex, or to convert stable unions of persons of the same sex into marriage. If a registrar’s office fails to comply with the Resolution, the couple concerned may bring the case to the magistrate judge for the district (juiz corregedor da comarca) so that the judge can order the registrar’s office to comply with the measure. In addition, administrative proceedings may be initiated against the officer who refused to celebrate the marriage or convert the stable union into a marriage.
National Council of Justice
The National Council of Justice (Conselho Nacional de Justiça) was created in 2004 through Constitutional Amendment No. 45 of December 30, 2004. (Emenda Constitucional No. 45, de 30 de Dezembro de 2004, Presidency of the Republic website.) It is a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges. (C.F. art. 103-B(§ 4); Quem Somos, CONSELHO NACIONAL DE JUSTIÇA (last visited July 2, 2018).)
Composition of the CNJ
According to article 103-B of the Constitution, the CNJ is composed of fifteen members who serve for a term of two years, with one continuation allowed. The members include one justice each from the Federal Supreme Court, the Superior Tribunal of Justice, the Superior Tribunal of Labor, and a State Tribunal of Justice; one state judge; one judge from a Federal Regional Tribunal; one federal judge; one judge from a Regional Labor Tribunal; one labor law judge; one member from the federal Public Prosecutor’s Office; one member from the state Public Prosecutor’s Office; two lawyers appointed by the Federal Council of the Brazilian Bar Association; and two citizens of notable juridical learning and spotless reputation, one appointed by the Chamber of Deputies and the other appointed by the Federal Senate. (Composição atual, CONSELHO NACIONAL DE JUSTIÇA (last visited June 29, 2018).)
Jurisdiction of the CNJ
In addition to the powers conferred upon the CNJ by the Statute of the Magistracy (Lei Orgânica da Magistratura Nacional, Lei Complementar No. 35, de 14 de Março de 1979, Presidency of the Republic website), the Council has responsibility for
- preserving the autonomy of the judiciary, enforcing the Statute of the Magistracy, and issuing regulations within the ambit of its jurisdiction, or recommending measures;
- enforcing article 37 of the Constitution and hearing, ex officio or upon demand, cases involving the legality of administrative acts performed by members or organs of the judiciary, vacating or revising such acts, or setting a period in which to adopt necessary measures for the exact compliance with the law, without prejudice to the jurisdiction of the Audit Tribunal of the Union;
- receiving and hearing complaints against members or bodies of the judiciary, including complaints against their auxiliary services, employees, and agencies rendering notarial and registry services that act by delegation of public or official powers, without prejudice to the disciplinary and correctional jurisdiction of the tribunals. The Council may assume jurisdiction over ongoing disciplinary proceedings and determine removal, availability, or retirement with compensation or benefits proportional to the time of service and apply other administrative sanctions, assuring a full right of defense;
- filing complaints [representar] with the Public Prosecutor’s Office, in case of crimes against the public administration or abuse of authority;
- revising, ex officio or upon demand, disciplinary proceedings of judges and members of tribunals decided less than one year ago;
- preparing a statistical report each semester on the cases and decisions entered, by unit of the Federation, which have been issued by the different organs of the judiciary; and
- preparing an annual report that proposes the measures it deems necessary with respect to the situation of the judiciary in the country and the activities of the Council. This report should be part of the message of the President of the Federal Supreme Court sent to the National Congress on the occasion of the opening of the legislative session. (C.F. article 103-B(§ 4) (translation by author).)