Concubinage and Stable Union: Differences, Similarities, and Legal Effects

Introduction

The concept of family in Brazil has evolved significantly over the decades, encompassing new forms of affective relationships and cohabitation. Among the configurations recognized by the legal system, the stable union has clear regulation in the Civil Code and is equated with marriage for various legal purposes. On the other hand, concubinage, although also involving a cohabitation relationship, is treated differently, with legal limitations due to its exceptional nature and frequent conflict with legal order. Understanding the differences and similarities between these institutions is essential to clarify the rights and obligations of those involved.

1. Stable Union: Recognition and Legal Effects

A stable union is defined in Article 1.723 of the Brazilian Civil Code as a relationship between two people who live together in a public, continuous, and lasting manner, with the purpose of forming a family. This institution applies to both heterosexual and same-sex couples, as recognized by the Supreme Federal Court in 2011 (ADI No. 4277).

A stable union is equated with marriage in several aspects, such as property rights, inheritance, social security, and the adoption of a property regime. Additionally, it can be converted into marriage upon request at a notary’s office, without the need for judicial approval.

Among the rights guaranteed by a stable union, the following stand out:

• Division of Assets: In case of dissolution, the partial community property regime generally applies, unless otherwise agreed through a formal contract.

• Inheritance Rights: The surviving partner has the right to inheritance, sharing it with descendants or ascendants, according to Article 1.790 of the Brazilian Civil Code.

• Asset Protection: The stable union also ensures protection against the sale of common assets without the consent of the other partner.

  
  

2. Concubinage: Characteristics and Legal Limitations

Concubinage, in turn, is regulated by Article 1.727 of the Civil Code, which defines it as the cohabitation of individuals who are legally prohibited from marrying. This prohibition generally arises in relationships that violate monogamy, such as when one of the partners is already married or in another stable union.

Although concubinage also involves a relationship of affection and cohabitation, it does not enjoy the same legal protections as a stable union due to its incompatibility with public order. The main legal effects of concubinage are limited to patrimonial and obligational matters, such as:

• Right to Compensation for Common Effort: In some judicial decisions, the concubine may claim compensation for work or contributions to the acquisition of assets, but there is no right to an equal division of property.

• Lack of Inheritance Rights: Unlike in a stable union, a concubine has no right to inheritance.

  
  

3. Practical Differences Between the Institutions

While the stable union is protected by the Brazilian Federal Constitution and the Civil Code as a family entity, concubinage is seen as an atypical relationship, often marginalized legally. The main difference between the two institutions lies in the legitimacy of the relationship: a stable union must be public, continuous, lasting, and aimed at forming a family, whereas concubinage generally involves illicit or conflicting relationships with other formalized family structures.

Additionally, property consequences also differ substantially. In a stable union, property division and property regimes are recognized, whereas in concubinage, assets acquired during the relationship are treated as the result of a de facto partnership, requiring proof of shared effort.

Conclusion

Stable unions and concubinage reflect different forms of affective relationships in Brazil but have distinct legal treatments. While a stable union is recognized as a family entity and protected by law, concubinage has limitations due to its often illicit nature.

The recognition of a stable union as a family entity has strengthened the property and personal rights of partners, ensuring dignity and equality between couples. On the other hand, concubinage, although not equated with a stable union, still allows for limited patrimonial discussions, especially in cases where there has been direct contribution to the acquisition of assets.

In this context, it is crucial for individuals to regularize their legal status through cohabitation agreements or formalization of a stable union to avoid conflicts and ensure greater security regarding the rights and obligations arising from the relationship. The role of a lawyer is essential to guide the parties on the legal implications and the best way to protect their interests, respecting legality and the constitutional principles that govern Family Law.

If you have any questions, feel free to contact me. I am available to assist you in this process.

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