Same-sex Unions in Brazil

Information on the rights and recognition of same-sex couples in Brazil and the concessions that may be granted to them.

Brazil does not officially recognize same-sex unions or marriage although amendments to this were being planned as of January 2009. Marriage law in Brazil is determined by federal and not state law. It defines marriage as the union of a man and a woman. The constitution and federal law do not specifically prohibit same-sex marriage but fail to acknowledge it officially.

The Brazilian constitution does outlaw prejudice on the basis of origin, race, gender, skin colour, age and any other form of discrimination. This was used as the basis of a Public Civil Action (Açào Civil Pública) in 2005 which, had it been successful, would have legitimised same-sex marriage throughout Brazil. It was decided by the court however that this matter should be determined by Congress and not in court.

Same-sex Couple Rights

A bill was proposed in Congress in 1995 to change federal law and allow the recognition of same-sex unions but it has faced strong opposition and, as of January 2009, has not yet been voted on. Since the late 1990s however, many concessions have been granted to homosexual couples.

Same-sex couples were determined to be de facto partners by the Superior Justice Tribunal in 2006. This gave some rights to same-sex couples.

One of the official categories for a relationship in Brazil other than marriage is a stable union. Many independent judicial decisions in Brazil since 1998 have recognized same-sex partnerships in this category under common law and granted various rights to the individuals concerned.

There is no actual definition or consensus on what constitutes a stable union. However, if Brazilian same-sex couples can prove their relationships fall into this category they are entitled to the following rights:

The National Social Security Institute (Ministério da Prêvidencia Social) will regard them no differently to a married couple in the areas of death and pension benefits
Partners can receive insurance benefits
Partners can be declared as dependents for income tax purposes
Non-nationals partnered to Brazilians can receive residency permits
Partners may be considered for custody of children
In the state of Rio de Janeiro, the partners of government employees receive the same benefits as married couples

In the state of Rio Grande do Sul in the south of Brazil, judges have determined that homosexual relationships should also be legally recognised. All judges and justices of the peace are now bound to approve civil unions (União Civil) “between persons of sound mind and independent sexual orientation” in the state.

In other states of Brazil, same-sex couples may not be able to follow the standard procedures when attempting to obtain rights, such as residency, but will probably need to hire a lawyer and obtain a judicial decision to authorise their union.