Common-Law Marriage in Brazil: Rights and Duties

Direct Answer

Common-law marriage (união estável) is recognized by the Federal Constitution (art. 226, paragraph 3) as a family entity, generating property and inheritance rights equivalent to formal marriage. No minimum cohabitation period is required: the relationship must simply be public, continuous, and lasting with the intention to form a family (art. 1,723, CC). The partner is entitled to half of assets acquired during cohabitation and to inheritance, per the STF ruling in RE 878,694/2017.

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What Is Common-Law Marriage

Common-law marriage (união estável) is cohabitation between two people that is public, continuous, lasting, and intended to form a family. It is governed by the Federal Constitution (art. 226, paragraph 3), the Civil Code (arts. 1,723 to 1,727), and Law 9,278/1996.

Legal Requirements

To establish a common-law marriage, the following must be present:

1. Public cohabitation — the relationship is not hidden; family, friends, and society recognize the couple
2. Continuity — the relationship is stable, without significant interruptions
3. Lasting duration — not a passing relationship (no minimum time period required)
4. Intention to form a family — commitment to life together, mutual support, and shared plans
5. No legal impediments — same impediments as formal marriage (art. 1,521, CC), except for de facto separation

What Does Not Constitute Common-Law Marriage

• Dating, even long-term, without cohabitation or shared life
• Casual or sporadic relationships
• A relationship kept secret (not public)
• Concubinage (parallel relationship with a married person not de facto separated)

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Recognition of Common-Law Marriage

Extrajudicial Recognition

Recognition can be formalized through:

Public deed of common-law marriage: Executed at a notary office, costing between R$ 300 and R$ 800 depending on the state. It is the most secure and easily provable method. It may include the property regime and asset provisions.

Private contract: Drafted between the partners, preferably with notarized signatures. It has evidentiary value but is less solid than a public deed.

Judicial Recognition

When there is no agreement or when proving the union’s existence is necessary (especially after one partner’s death), recognition is achieved through a declaratory court action.

Accepted evidence:

• Testimony from family and friends
• Letters and messages
• Joint photos and videos
• Shared residence proof
• Joint bank accounts
• Income tax return listing partner as dependent
• Health insurance as dependent
• Rental contract in both names

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Property Rights

Property Regime

In the absence of a written contract, the partial communion of property regime applies (art. 1,725, CC). This means:

• Assets acquired for value during cohabitation are shared (meação)
• Assets predating the union remain individual property
• Inheritances and gifts received during the union are individual

Partners may stipulate a different regime through a written contract (public deed or private agreement).

Meação (Half-Share)

Meação is each partner’s right to half of the common assets acquired during the union. It is distinct from inheritance: meação is an inherent right that does not depend on death.

Type of Asset	Shared?
Property purchased during the union	Yes (50% each)
Property acquired before the union	No
Inheritance received during the union	No
Vehicle financed during the union	Yes
Investments made with income during cohabitation	Yes
Gift with incommunicability clause	No

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Inheritance Rights

Equalization with Married Spouses

The STF, in the RE 878,694/MG (2017) ruling, declared unconstitutional the distinction between married spouses and common-law partners for inheritance purposes. Since then, common-law partners have the same inheritance rights as married spouses.

Rights in the Estate

The common-law partner:

• Is a mandatory heir (art. 1,845, CC, per STF interpretation)
• Shares in the deceased’s individual assets alongside descendants
• Receives everything in the absence of descendants and ascendants
• Has a right to remain in the couple’s home (direito real de habitação)

Succession in Practice

Situation	Partner’s Right
With common children	Shares in individual assets
With children only of the deceased	Shares in individual assets
No children, living parents	1/3 of the estate
No children, no parents	Entire estate

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Conversion to Formal Marriage

Art. 1,726 of the Civil Code and art. 226, paragraph 3, of the Federal Constitution provide for converting a common-law marriage into formal marriage.

Procedure

1. Application to the justice of the peace in the district of residence
2. Submission of documents (certificates, proof of union, witnesses)
3. Public Prosecutor’s review
4. Court order authorizing conversion
5. Registration at the Civil Registry

Effects

Conversion produces effects ex nunc (from the conversion onward), although some legal scholars argue for retroactive effects to the date cohabitation began. The majority of case law maintains retroactivity for property purposes.

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Dissolution of Common-Law Marriage

Dissolution can occur in two ways:

Extrajudicial Dissolution

When there is agreement, partners may dissolve the union through a public deed at a notary office (by analogy to Law 11,441/2007). Requirements:

• Consensus on asset division, custody, and support
• No minor or incapacitated children
• Attorney representation

Judicial Dissolution

When there is no agreement or there are minor children, dissolution proceeds as a court action in Family Courts, following the same procedure applicable to divorce.

Matters decided in dissolution:

• Division of assets acquired during cohabitation
• Child custody
• Support (children and partner)
• Name use
• Compensation for contribution to assets

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Same-Sex Common-Law Marriage

The STF, in ADPF 132 and ADI 4,277 (2011), recognized same-sex common-law marriage as a family entity with all resulting rights and duties. In 2013, CNJ Resolution 175 prohibited notary offices from refusing qualification, celebration, or conversion to marriage of same-sex unions.

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Common-Law Marriage and International Law

For foreign partners, common-law marriage has immigration significance:

• It supports an application for residence authorization through family reunification
• It can be recognized for visa and immigration purposes
• It requires solid evidence before the Federal Police

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When to Consult an Attorney

Common-law marriage matters require specialized family law guidance. Consult an attorney to:

• Formalize the union through a public deed
• Define a property regime appropriate for the couple
• Dissolve the union with fair asset division
• Obtain judicial recognition (post-death)
• Secure inheritance rights

ZS Advogados Associados offers comprehensive advisory services on common-law marriage, from formalization to dissolution or judicial recognition. Contact us for a consultation.

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Conclusion

Common-law marriage is a constitutionally recognized family entity with property and inheritance rights equated to formal marriage since the STF’s 2017 decision. Formalization through a public deed is recommended to ensure legal certainty, help with proof of rights, and clearly define the property regime. Specialized legal guidance is essential to protect both partners’ interests and ensure the full exercise of their rights.

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This article is for informational purposes only and does not constitute legal advice. Each case has specific circumstances that should be analyzed by a qualified attorney.