THE VICISSITUDES OF EQUALITY AND CONJUGAL RIGHTS UNDER BRAZILIAN LAW
Paulo Luiz Netto Lobo*
SUMMARY: 1. Principles of conjugal equality; 2. The long journey of family inequality; 3. The reduction of the despotic quantum among couples in Brazilian Law; 4. Comments on the common obligations of Brazilian couples as prescribed by the Brazilian Civil Code of 2002; 5. Reciprocal fidelity obligations; 6. Mutual respect and consideration; 7. The legal obligation to share the same conjugal domicile; 8. Mutual assistance obligations; 9. Obligation to maintain, protect and educate children. Conclusion.
1. PRINCIPLES OF CONJUGAL EQUALITY
Two short rules from the Federal Constitution of 1988 constitute the epilog, at least in the legal field, to the long and painful trajectory of female emancipation and the subsequent overcoming of patriarchal conjugal society, namely:
Article 5 (…) I.
The Constitution establishes that men and women are equal in rights and obligations.
Article 226 (…) § 5th
Rights and obligations as related to conjugal society are exercised equally by both men and women.
The first statement should suffice given its generous scope. The law maker, however, chose to deal with the principle of equality in the chapter reserved for the family, in accordance to the traditional Brazilian legislative experience and legal hermeneutics, that would seem to keep inequality and the inferiority of women in the conjugal society, as always was1.
In the period between the application of the 1988 Constitution and the Civil Code of 2002 there were many doctrinaire statements and legal decisions in accordance with the traditional unequal treatment enhanced by the 1916 Civil Code, as far as husband and wife were concerned. In those instances, however, the thesis of the immediate applicability of the constitutional law prevailed, the older legislation being considered revoked.
The 2002 Civil Code put a final end to the force of previous understanding, when it established that:
Article 1511 – Marriage establishes a full communion of life, having as its foundation the equality of rights and obligations on the part of both man and woman.
2. THE LONG JOURNEY OF FAMILY INEQUALITY
The historical stratification of inequality has always been present when the subject is family law: inequality among siblings and, especially, inequality between the married couple. It is incredible, when we look back, how bigoted principles came to become law. Even more incredible, it is to realize the existence of those who lament that the evolution of time represents the end of the family, or their idea of family based on principles that time took upon itself the responsibility to diminish or extinguish, namely, the family as the result of a legal ceremony, that is, a legitimized family and the principle of biological or consanguineous origin. Even today, in spite of the Federal Constitution having chosen open rules to administer any type of affective and stable relationships that can be considered a family2, resistance to the admissibility of these entities that do not correspond to the marriage model is very strong.
Contrary to the formal equality in the economical and social relations, conquests attributable to the liberal ideas that flourished in the turn of the XVIII to the XIX Century, in the Western world, familiar inequality remained the same until very recently3.
It should be remembered that, in Brazil, the Statute of the Married Woman came into being only in 1962, almost two centuries after the liberal revolution. It is only after its inception, that the married woman ceased being considered legally incapacitated. Noticeable residues of inequality were still present in the Statutes and were removed only after the Constitution of 1988, in particular through Article 226, § 5, “the most devastating constitutional provision to really revolutionize Brazilian family law”4.
After centuries of asymmetric treatment, there has been an evolution of the law but there is still a long ways to go before it becomes consistent social practice, consolidating the communion of life, of love and affection, in the realm of equality, freedom, solidarity and reciprocal responsibilities5.
The materialization of equal rights and obligations between man and woman in the conjugal relations of a stable union has followed the evolution of equality principles in the area of fundamental rights as underlined in the Constitutions of contemporary democratic States.
These principles are two-dimensional:
equality of all under the law, which is considered a great victory for mankind, identified in the classical legal or formal liberty that ended privileges on the bases of origin, blood or social status and extended equal subjective rights to all. Law identifies or chooses those who are equal. Thus, it can be understood why until the advent of the 1988 Constitution women received unequal treatment since the law considered them equal only among themselves but not in their relationships with men.
equality of all under the law in the concept of forbidding inequality and discrimination, in the law itself, as for example, the inequality of rights and obligations between man and woman in the conjugal society.
Equality of all under the law (“Men and women have equal rights and obligations” 5th Article of the Constitution) does not mean that their differences, natural as well as cultural differences, should not be considered. Difference rights exist to guarantee the respect for those peculiarities present in all individuals and which make up for their sense of dignity. But, as it did in the past, it cannot act as a stepping stone for inequality of rights and obligations, in the legal sense.
3. THE REDUCTION OF THE DESPOTIC QUANTUM AMONG COUPLES IN BRAZILIAN LAW.
Since the colonial period, Brazilian legislation is a perfect picture of inequality among married couples, corresponding to the attitudes that prevailed until 1988. The slow legal emancipation of women, following the decline of familiar patriarchalism, can be delimited by the following legal documents:
I. Ordenações Filipinas (Philipine Ordinances). In effect in Brazil with some changes from 1603 through 1916. Women needed permanent tutelage because “they suffered from weakness of understanding.” (Book 4, Title 61, § 9 and Title 107). The husband could punish (Book 5, Titles 36 and 95) his partner, or kill his wife accused of adultery (Book 5, Title 38), but the same was not true when the situation was him against her; the only thing needed was public fame, “austere proof” being unnecessary (Book 5, Title 28, § 6). The Criminal Code of the Empire (Article 252), during the XIX Century, reduced this legal violence, allowing only the bringing of the accusations to a court of law. When the Ordenações (Ordinances) were in force, jurists believed that husband and wife should be considered as one for legal matters6. Disappearing in the person of her husband, the woman became depersonalized. On the other hand, the husband could not fight in court over property without his wife’s consent (Book 3, Title 48). In this case, the interest that was protected was not the wife’s but that of the family in its economical dimension.
Even Teixeira de Freitas, a jurist ahead of his time, in his Esboço do Codigo Civil (1860-65) anticipated that the husband could “request the necessary police investigation”(Article 1306)7 to secure marital supremacy and the woman`s obligation to live with him under the same roof.
II. 1916 Civil Code. The previous Code, so liberal in economical matters, was extremely oppressive to women, as far as family rights were concerned. Without the extremes of the colonial version, it considered women as relatively incapable – along side children, squanderers and savages – and permanently subject to marital supremacy. Without the husband’s authorization, the woman could not sue him in Court, be it civil or criminal Court, except in some cases established by law; she could not be a tutor or curator; to exercise any profession, to assume responsibilities or to accept a mandate. For all purposes, she was her husband’s aide.
III. Estatuto da Mulher Casada. ( Statute of the Married Woman) The appearance of Law 4121, of August 27th , 1962, represented the starting point for the overcoming of marital supremacy in the conjugal society and the legal asymmetric treatment between man and woman. This law was received as the law that abolished female incapacity. In reality, many of the legislation that consecrated unequality principles were revoked, but some bothersome vestiges still remained. This is the case of the predominance of the husband in the conjugal society and the paternal power that man began to exert “with the wife’s cooperation;” the husband’s right to estabilish the family domicile, although in this case, with the wife’s prerogative to appeal to a judge; and, what is even worse, the existence of differentiated rights and obligations, always disfavoring the wife.
IV. Lei do Divorcio. (Divorce Law). Law 6515, of December 26, 1977, gave meaning to the 9th Constitutional Amendment, when it introduced divorce in Brazil, bringing to an end the secular resistance represented throughout the centuries by the Catholic Church. That law gave couples, in an equal way, the opportunity to put an end to a marriage and to start a new family. This law caused some other changes in civil legislation, on its way to conjugal equality, making it optional for the woman to adopt her husband’s last name or not. It maintained, however, the model set by the Estatuto da Mulher Casada (The Married Woman Statute) that allowed for the continuation of man as the head of the family.
The adding of the husband’s name, due to the law, is very important because it always meant the transferring of paternal power into marital power. The law changed but the habit remained, without any concern with its origin.
4. COMMENTS ON THE COMMON OBLIGATIONS OF THE COUPLES AS ESTABLISHED BY THE 2002 CIVIL CODE.
The 2002 Civil Code revoked the particular obligations of men and women, one of the strongholds of legal unequality between married couples, becoming compatible with the constitutional precepts. By the power of the Constitution, in reality, all these particular obligations had ceased since its advent.
The doctrinaire treatment traditionally associated with this theme had as paradigm the patriarchal family, including, the so called common obligations, that had as its main objective the consolidation of the “legitimate” family, especially as far as fidelity obligations and living together were concerned. This theme has to be viewed taking into consideration the equalitarian family, re-personalized in the fundamental affective ties and away from its secular biological, economical, political and religious functions, that is, from the early germinal concept of the State8. The freedom to constitute, organize, plan and undo the conjugal society and the sharing of responsibilities impose upon the law the recognition of affectio as the sole support of the family being.
The principle of freedom, necessarily attached to the principle of equality, in family relations, has to do not only with the creation and extinction of conjugal societies, but with its permanent constitution and reinvention.
As the family moves away from its traditional functions, it does not make any sense that the State should insist on regulating obligations that affect deeply the couple’s freedom, intimacy and privacy.
The exercise of equalitarian and solidary marriage life, in today’s world, is something totally removed from legislative and legal State interference, since it is completely removed from public interest.
The dominating rule in this evolutionary line is clearly stated in Article 1513 of the Civil Code.
Article 1513 – It is strictly forbidden to any person, natural or legal entity, to interfere in the communion of life instituted by the family.
However, Civil Code Article 1566 goes against this principle when it establishes conjugal obligations whose verification implies the unavoidable State interference (a legal entity) through the Judiciary in the couple’s communion of life. The “reciprocal fidelity” obligations, “life in common under the same roof” and “reciprocal respect and consideration” imply deep State interference in the intimacy and family privacy that should be of the exclusive concern of the couple themselves. These obligations, during the conjugal living together, are absolutely innocuous since destitute of penalties for eventual disobediences. Thus, these laws act exclusively as reasons for litigious separation (Article 1572) when the conjugal society has come to an end, bringing to the knowledge of public judicial officials (a fortiori of the State) that which should be kept secret for the preservation of the intimate and private life of the married couple (Article 5th, X, of the Constitution). This indirect consequence depends on a private and power filled act on the part of the husband, characterized by strong subjective density. The type of behavior that is acceptable to one is not to the other. An isolated act can be considered more unacceptable than acts that come continuously. However, the principle of conjugal and family freedom is satisfied with the mere disappearance of the couple’s affective ties, which determines the need to identify what constitutes fault (guilty) and who is responsible for it. It is not on the State’s legitimate public interest to impose the continuation of a relationship when one of the parts or both do not want it to go on. It is important to remember that direct divorce has as its only objective cause the de facto separation; any other matters related to obedience to conjugal rights are and ought to be completely ignored.
It should be stressed that Article 1566 establishes a number of more serious obligations than those prescribed for a stable union (Article 1724), whose components (the couple) of said union are not obliged to respect the principle of reciprocal fidelity and life together under the same conjugal roof. These obligations are irreconcilable with a stable union, since the Constitution received and guaranteed it as an ontologically free union in its formation and appearance. If such obligations cannot be attributed to the partners of the stable union, then they, the obligations, could not be forced upon the couple, because it would be making it difficult for the stable union to evolve into marriage, instead of facilitating it as provided by Article 226, § 3rd, of the Brazilian Constitution.
The only obligations that are common both to married couples as well as to those who live together and that do not violate their privacy and personal life, therefore, not constituting an interference with their sharing of life, are the obligations of mutual assistance and support, care and education of their children. These are mandatory obligations that reflect relevant public interest.
Next, we will concentrate on a more critical analysis of specific conjugal obligations under the 2002 Civil Code.
5. RECIPROCAL FIDELITY OBLIGATION
Reciprocal fidelity has always been understood as the absence of sexual relations with a third party. Historically, the female sexuality was the object of control in order to protect domestic peace and avoid turbatio sanguinis. In this strict sense (obviously, impossible in today’s society) it was always present the backing of doctrine and jurisprudence. It should, therefore, not be understood as meaning mutual respect and consideration.
The doctrine signals out such a traditional meaning in all its hardness9 as justified while the State was defined as “a gathering of families”; as long as it was the State’s interest to exercise control over women and their sexuality; as long as it was useful for the State to control the unitary family patrimony based on a rigid system of child legitimacy and succession keeping away from the legal system all children considered illegitimate.
Social reality has demonstrated that this obligation was useful exclusively to repress women because, historically, male lack of fidelity, strongly disseminated in every strata of Brazilian society, was always tolerated. Today’s prevailing values and attitudes do not attribute great importance to the conservation of this conjugal society obligation, which transforms marriage not into a communion of affection and superior manifestations of companionship and collaboration but into an instrument of sexual repression and retaliation against one another when the relationship comes to an end.
Fidelity obligation can be legally verifiable only by sacrificing people’s intimacy and privacy10, which makes its permanence something indeed questionable. On the other hand, its usefulness as child legitimacy guarantee based on consanguinity and on the exclusively legal family, has lost its strength since the Brazilian Constitution and the Civil Code itself elected absolute equality among siblings no matter the origin, be it biological or not.
Both the doctrine and the jurisprudence for a long time have been demonstrating a certain disdain for this surpassed conjugal obligation when it was admitted that expressed or tacit forgiveness would eliminate the offense or the crime of adultery which represented the exasperation of sexuality control by the State, given the betrayed party power to provoke punishment or the right of grace11. Besides forgiveness, Pontes de Miranda understood that there were some limitations regarding fidelity obligations when one of the two could influence on the other not fulfilling his/her obligations12.
6. MUTUAL RESPECT AND CONSIDERATION
This obligation was introduced in place of fidelity obligation into Brazilian law on May 10th, 1996, by Law 9278 that regulated stable union. The 2002 Civil Code, inexplicably, brought it to the couple, as a plus, keeping, however, the concept of fidelity obligation, but didn’t include it into Article 1724, choosing to refer to “loyalty” and “respect”, words whose meaning are much more vague and nebulous. There is no apparent reason for this discrepancy. .
The reciprocal respect and consideration obligation refers much more towards the couple’s dignity, since the law delegates to them the responsibility to qualify it, in their own privacy and intimacy, according to the values they share and without any interference from the State.
The respect obligation is a special duty of refraining from doing due to the existence of the personal absolute rights of the other part (of the couple), as defended by Antunes Varela13. Respect towards the individual freedom and personality of one another.
Sharing life does not eliminate the individual personality of each one of the two that form the couple. Reciprocal respect and consideration covers the inviolability of life, liberty, physical and psychic integrity, honor, name, image and privacy of the other partner. But it is not only an obligation to abstain, or something negative, because it imposes positive opportunities to defend common values, such as honorable solidarity, a good family name, and the common moral patrimony.
7. THE SHARING OF LIFE IN THE CONJUGAL DOMICILE
It is common for doctrine to name this obligation as “co-inhabitation”; in reality,
the sense it has always been understood by points towards sexual relations during the time of living together under the same roof, with the euphemistic expression debitum conjugale, today so strongly rejected. It made sense while the patriarchal society prevailed, to the woman being reserved the domestic role while to the man was reserved that of provider.
Traditional law already admitted in special circumstances that living together under the same conjugal roof could be overlooked. Certain permanent or temporary duties, professional activities or employment in different places or cities, would characterize the absence of liability.
The 2002 Civil Code, however, did not transform it into an exception when dealing with conjugal obligations. But, when it disciplined the conjugal domicile (Article 1569) , it allowed one of the spouses to move away “to perform public duties, to exercise his/her profession or for important personal reasons.” This permission to stay away does not mean that each of the spouses could have his/her own home. Just the same, with the coming of women’s emancipation and the growing insertion of women into the work market, including in cities different from those where her spouse works and lives, the obligation to live together seems to be outdated and surpassed.
On a different perspective, however, the principle of familiar freedom, based on constitutional dispositions, seems to welcome the choice the spouses could make of living in different houses for personal reasons.
8. MUTUAL ASSISTANCE OBLIGATIONS
Mutual assistance involves both material as well as moral aspects. It derives from the principles of familiar solidarity.
Moral assistance has to do with special attention and care to the spouse, what is socially expected from those who are united by affective and friendly ties at its highest level of intensity. It is related to the traditional concepts of mutual help and solidarity characteristic of human nature which should be present on good as well as bad times. It is the moral comfort, the friendly shoulder and the care in time of illnesses, in sadness and during psychological and spiritual crises. It also means love, support, stimulus towards success in the emotional as well as professional life. Certainly, these are the strongest ingredients present in a conjugal or loving relationship in a day-to-day living; the type of situation that, once absent, progressively will lead the couple towards separation. More than any other isolated factor, that is the one that may contribute the most to a couple breaking up.
Material assistance, called by some scholars help obligations, has to do with the provision of the necessary means to support a family, according to the income and economical situation of each one of the spouses. The family, like any other social group, is a complex of needs, going from food to clothing, to leisure, housing, education, health, etc. The law does not establish, actually it wouldn’t be possible for it to do so, which items should constitute the family needs that are to be part of economical maintenance. It is up to the couple to define each one’s responsibilities. Not to comply with material obligations may be interpreted as not to comply with the alimony obligations which can be sought by the other spouse, within the limits of need and possibility.
9. OBLIGATION TO PROVIDE SUPPORT, CUSTODY AND EDUCATION FOR THE CHILDREN
This obligation refers specifically to those duties attributed to the spouses which are related to the couple’s children.
Support can be understood as objective material aspects, such as those expenditures associated with adequate living conditions compatible with the income of the spouses, and also with health, sports, leisure, culture and education of the children.
Custody, being an obligation equally divided by the spouses, has been a wide right/obligation of living as a family, and is considered the child’s absolute priority (Constitution, Article 227), and also child support, under the surveillance and care of the parents (third party excluded), obligations inherent to family power (Article 1630, Civil Code). As underlined on the Child and Adolescent Act (Article 33), custody implies material, moral and educational obligations regarding the child.
Education, in the broad sense used by the Civil Code, includes culture in all its varied dimensions as applied to the child’s rearing as long as he/she stays within the family power reserved to the parents. The Constitution (Article 205) establishes that the main objective of education is the total development of the child, his/her citizenship preparation and work qualification. This family related education takes place in the home itself, in the political and social spaces, and, above all, at school. This broad meaning of education, as an obligation imposed upon the parents, corresponds to the overall individual make up, on the line of the ancient Greek concept of paideia. It goes without saying that the parents are not permitted to introduce the child to values and attitudes that go against Moral principles and those good manners adopted by society or established by the Constitution.
Disobedience to these obligations will trigger a series of consequences: food support payments, substitution of custody, the loss of family power and even civil responsibility for moral injury due to the violation of personality rights that are consolidated during the child early and adolescent years.
Unequality of rights among spouses was the natural consequence to the family model that prevailed in the Brazilian legal system until the advent of the 1988 Constitution that put an end to its last and persistent residues. On the infra-constitutional level, the 2002 Civil Code expressly suppressed the asymmetric legal treatment given to husband and wife obligations
dedicating Article 1566 to the common obligations they ought to share.
However, the overlaying reason for the existence of the law that institutes common obligations, their usefulness and finality, lost its consistency because it was part of a normative set of rules that had as its purpose the consolidation of the family paradigm based on the formal legal entity, marital power, legitimacy and paternal power. These strong foundations disappeared or were totally modified on account of the new family concept brought about by the 1988 Constitution which reflects the intense social and cultural changes that took place in Brazilian society in the last few decades of the 20th Century, especially by the unlimited (and truly revolutionary) adoption of equal rights and obligations between men and women and their children.
The principle of constitutional equality also reached family entities, in the situations when there was no hierarchy among them, as it is the case, when dealing with marriage and stable union. Thus, it is not justifiable that the Civil Code should have attributed different obligations for regular married couples and partners on a stable, common law union. The Constitution did not upset the stable union when it established that the law should facilitate its conversion into regular formal marriage. What is present here is the idea of the potestative power or faculty; it is as if it declared that the parties of a stable union are free to keep their family entity, with all the rights it has, or to change it into a formal union, if the couple so desires, the reason why the legislator should put aside all legal obstacles to it. On the same line of thought, the opposite situation, that is, after divorce, the formal legal marriage can become a stable union. The Code, however, did not facilitate this conversion; as a matter of fact it made it more difficult when it established obligations, such as reciprocal fidelity and living under the same roof, that apply only to legally married couples, which seems to make the stable union constitutionally doubtful.
Reciprocal fidelity and living under the same roof obligations, and even mutual respect and consideration, are legally innocuous, since there is not a single legal sanction in the cases when those obligations are not fulfilled which leaves the couple themselves and on their own, the option to determine whether the absence of the obligations can interfere or not with their relationship. The obligations, in reality, act as a justifiable cause in the cases of litigious legal separation and will continue having such an application as long as Brazilian imputation of guilty, rejected by legal principles due to the abusive disrespect to human dignity and the lack of constitutional support, since it ignores the matter when it consecrates the right to separate and divorce (Article 226, § 6th). The legal verification of guilty goes against the constitutional tutelage over intimacy and the private life of the couple (the Constitution, Article 5, X), which constitutes inviolable personality rights.
1* Professor at the Federal University of Alagoas and Director of the Brazilian Institute of Family Law - IBDFAM
. The more conservative jurists always placed obstacles to the plenitude of constitutional equality principles, as demonstrated by civil rights history, making this equality dependent on infra-constitutional rules expressed with the clear intent to maintain in force the previous legal order. Teixeira de Freitas. (1896. Consolidação das leis civis. Rio de Janeiro: Gamier, p.33,) attributes this retrograde vision to “the power of habit” and gives examples to show that now, as before, things are done the same way: “To put an end to the hideous legal inheritance rights among children of poor people and peasants, it was not sufficient that the (Imperial) Constitution abolished privileges and proclaimed equality under the law (Article 179, § § 13 and 16); it was necessary the disposition expressed on Article 1, of Decree 463, of September 2, 1847.”
2 . Lobo, Paulo Luiz Netto. “Entidades familiares constitucionalizadas: para além do numerus clausus.” Revista Brasileira de Direito de Família. 12, pp. 40-55, jan/mar 2002.
3 . Prejudice manifested itself in the German attitude that reserved women the three Ks: Küche = kitchen, Kinder = children and Kirche = church. Everything else had to do with man.
4 Rodrigues, Silvio. “Breve histórico sobre o direito de família nos últimos 100 anos.” Revista da Faculdade de Direito da USP, v. 88, p. 246, 1993.
5 Lobo, Paulo Luiz Netto. “A repersonalização das relações de família.” Revista Brasileira de Direito de Família. 24, jun/jul 204, pp. 136-156.
6 Valasco and Mello Freire, Apud Almeida, Candido Mendes de. Auxiliar Jurídico – Apêndice de Ordenações do Reino. Lisboa: Fundação Calouste Gulbenkian, 1985 (Fac-simile 1869 edition), v. II, p. 569.
7 Esboço do Código Civil. Brasília: Ministério da Justiça, 1983, v. 1, p. 287.
8 The symptomatical affirmation of 19th Century greatest jurist, Teixeira de Freitas, in the introduction to Consolidação das Leis Civis , op. cit., p. 101: “Because the State is a reunion of families (…).”
9 On the same subject, Pereira, Caio Maria da Silva. Instituições de Direito Civil. v. 5, updated by Tânia da Silva Pereira, Rio de Janeiro: Forense, p. 171, 2004: “The breaking of fidelity obligations occurs only when one of the parts has sexual relations with a different person.”
10 In American law, the concept of privacy as a fundamental right, in the family context, reached its highest point in the Griswold Supreme Court decision (1963). In that case, the Supreme Court understood that marriage is an association that promotes a way of living, it not causes it; it promotes harmony, not political facts; bilateral loyalty, not commercial or social projects. These are situations contemplated by the rights to privacy that do not admit third party or the State’s interference. Even adultery can become a personal choice and therefore protected by the Constitution. See Krause, Harry. D. Family Law. St. Paul: West Publishing, pp. 25-122, 1986
11 It is said that in France two persons had the right of grace: the President and a betrayed husband. See Grosliere, Josete. “De l’infidelité de la femme mariée.” Revue trimestrielle de Droit Civil. 89(2), avr-jun., p. 230, 1990.
12 Tratado de Direito Privado. Rio de Janeiro: Borsoi, t. III, p. 110, 1971.
13 13 Direito de Familia. Lisboa: Petrony, p. 345, 1987.