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Recognition of same-sex unions in Brazil: Wikis

  
  

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Legal recognition of
same-sex couples
Same-sex marriage

Belgium
Canada
Netherlands
Norway

South Africa
Spain
Sweden

Performed in some jurisdictions

Mexico: DF
United States: CT, DC, IA, MA, NH, VT, Coquille

Recognized, not performed

Aruba (Dutch only)
Israel
Netherlands Antilles (Dutch only)
United States: CA (conditional), MD, NY, RI

Civil unions and
registered partnerships

Andorra
Austria
Colombia
Czech Republic
Denmark
Ecuador
Finland
France
Germany
Greenland

Hungary
Iceland
Luxembourg
New Caledonia
New Zealand
Slovenia
Switzerland
Wallis and Futuna
United Kingdom
Uruguay

Performed in some jurisdictions

Argentina: BA, RC, RN, VCP
Australia: ACT, TAS, VIC
Mexico: COA
United States: CA, CO, HI, ME, NJ, NV, OR, WA, WI
Venezuela: ME

Recognized, not performed

Isle of Man (UK only)

Unregistered co-habitation

Argentina
Australia
Brazil

Croatia
Israel
Portugal

In some regions

United States: MD, RI

Jurisdictions with current or recent debates on SSUs

Albania
Bolivia
Bulgaria
Burundi
Cambodia
Chile
China (PRC)
ROC (Taiwan)
Congo (DRC)
Costa Rica
Cuba
Cyprus
Dominican Republic
El Salvador
Estonia
Europe
Faroe Islands
Greece
Honduras
India
Ireland
Italy
Jamaica
Japan
Jersey

Kosovo
Latvia
Liechtenstein
Lithuania
Malta
Moldova
Montenegro
Nepal
Netherlands Antilles
Nigeria
Panama
Paraguay
Philippines
Poland
Romania
Russia
Serbia
Slovakia
Singapore
South Korea
Uganda
Ukraine
Venezuela
Vietnam
Zambia

United States: AL, AS, AZ, DE, FL, GU, IL, LA, MI, MN, MT, NM, NC, OH, PA, PR, SC, UT, WV, WY, Native Americans

See also

Same-sex marriage
Same-sex marriage legislation
Timeline of same-sex marriage
Civil union
Domestic partnership
Registered partnership
Civil partnership
Listings by country

LGBT portal

Recognition of same-sex unions in Brazil occurs nationally since the creation of the new Constitution of Brazil. Several constitutional principles and the absence of legislation against, enjoyed by same-sex unions.[1]

Brazilian same-sex couples have achieved a considerable degree of legal protection in the last twenty years, a consequence of several judicial decisions extending to same-sex couples the same status and rights afforded opposite-sex couples. These decisions represent one of the most important developments in the recent history of Brazilian equal protection jurisprudence because they establish important precedent for future group oriented litigation.

Abandoning the traditional formalism that has long prevented greater social inclusion of disadvantaged groups, several Brazilian courts have ruled that same-sex couples should have access to equal legal treatment. This is all the more significant given that Brazilian courts have traditionally played a minor role in the process of construction and expansion of citizenship.

In recognizing their importance in the process of social change, Brazilian courts have significantly contributed to the transformation of the social status of gays and lesbians, a group that faces significant discrimination in Brazil.[2]

There is continued debate in the Brazilian legislative and judicial branches about the legal status of same-sex couples. While there has been a bill in Congress since 1995 which aims to establish same-sex civil unions, which has never been put to a vote, a 2006 decision by the Superior Court of Justice, states that same-sex couples are de facto partners.

A meeting to discuss LGBT rights and battle homophobia was held in May 2008 and involved representative from the president's office, cabinet members and legislators. The country's president, Luiz Inácio Lula da Silva recommended that the agenda of this meeting include the discussion on the recognition of same-sex relationships and proposals to allow gay and lesbian couples to adopt children.[3] But there are judicial decisions allowing both partners adopting together.

Contents

Court rulings

South America      Same-sex marriage      Other type of partnership      Unregistered cohabitation      Unrecognized or unknown      No recognition, issue under consideration      No recognition, only same-sex marriage officially banned      No recognition, all types of partnerships officially banned      Homosexuality illegal

Marriage is a federal matter and states can't legislate on this. Federal law and the federal Constitution ignore same-sex couples, not recognizing nor forbidding their recognition, except for the definition of marriage as between a man and a woman. As the debate in the states and the Congress goes on, some rights have been given to same-sex couples as a result of court decisions since 1998. These rights granted through judicial decisions cover matters such as inheritance, immigration, and state pension and welfare benefits.[4] Brazil allows social security benefits for partner of homosexual private worker (there is a judicial decision against National Security Social Institute), but this case has not finished yet.[5] Many states and cities has given the same social security rights for homosexual partner of their public servants.[6][7][8][9]

Civil unions, de facto partnerships, "stable unions" under common law and actual marriage are the four "categories" for a relationship in Brazil. No same-sex couple is yet considered married in Brazil, but there are varying levels of debate about the other categories. Homosexual Brazilians who can prove that their relationship is a "stable union" will be treated by the National Social Security Institute no differently than a married couple in cases of retirement or death. However, there is not a consensus about the definition of stable union. The National Social Security Institute's policy change is the result of a recent court ruling (pending final decision). Brazil allows foreign partners of its homosexual citizenry to receive residency permits (there are many judicial decisions,[10][11] there is a bill[12] and there is a ordinance of Conselho Nacional de Imigração allowing this).[13]

On July 12, 2005 a São Paulo judge ruled that a same-sex couple could adopt children. It is believed the case is the first in Brazil where a gay couple has been allowed to jointly adopt a child. However, because Brazil has a civil law system, this case had no effects beyond this individual case. João Gilberto Gonçalves, a federal prosecutor, filed a Public Civil Action in July 2005 charging the country's prohibition of same-sex marriage as being opposed to the 1988 constitution, which outlaws "prejudice as to origin, race, sex, colour, age and any other forms of discrimination." The 99-page[14] Action document mentions several court rulings and newspaper reports on gay rights. The court ruling decided the matter was not to be decided in court: it should rather be settled by Congress. Had the prosecutor's arguments been accepted by the judge, the decision would have immediately allowed same-sex marriage in all Brazilian states. The state of Rio de Janeiro gives same-sex benefits to the partners of government employees. The Court of Justice of Rio de Janeiro suspended this law and the governor Sergio Cabral Filho ask to Supremo Tribunal Federal (the constitutional court) deciding about it.

Bill No. 1151

A bill on gay civil unions was introduced in Congress by former congresswoman Marta Suplicy. Bill project 1151, which aims to change federal law in order to establish same-sex civil unions, has been pending in the House since 1995 and was the theme of the 2005 São Paulo Gay Pride Parade. The bill has been debated many times, but has never been brought to a vote. Then-Speaker of the House Severino Cavalcanti was expected to end debate and bring the bill to a vote in late 2005, but corruption charges forced his resignation. Despite the anticipated vote, Calvalcanti strongly opposed the bill.

LGBT stable union

Lesbian couple in São Paulo.
Gay military couple in Brasília.

Basic model of contract

Brazilian Homosexual Stable Union Contract (base model, to be replaced the personal data of contractors):

For this contract-law marriage, we, the undersigned, MÁRIO BELINATI QUEIROZ (name),* BRAZILIAN (nationality),* born to 31-MAY-1982 (day-month-year), in the city of SALVADOR (city),* BAHIA (state),* RG SSP/Ba: 1234329876 (general registration),* LAWYER (occupation), single (marital status), and ROGÉRIO SCHMIDT CARVALHO (name), BRAZILIAN (nationality),* born to 17-JUNE-1984 (day-month-year), in the city of SALVADOR (city),* BAHIA (state),* RG SSP/Ba: 9876543210 (general registration),* PHYSICIAN (occupation),* single (marital status), both residents (or not) there are so many years in such property in the street of GREENFELD (street),* 456 (number),* BARRA (neighborhood),* to the President of the Grupo Gay da Bahia and five undersigned witnesses, we formalize our stable union through this public instrument, duly recorded in the BOOK OF PUBLIC RECORD OF THE STABLE UNION BETWEEN PEOPLE OF SAME-SEX, book kept at the headquarters of the Grupo Gay da Bahia, Society of Public Utility Council of Salvador, Bahia.

We declare it is true that we are single, free and clear to carry out this public and solemn act, through which by our own free will, it is acknowledged and confirmed our common-law marriage, which began in June 2006 due to a lack in our country other legal mechanisms that include specific homosexual couples, attach to this document and act the same meaning, value and functions similar to legally recognized unions between stable couples of the opposite-sex.

Whereas the Constitution of Brazil recognizes the common-law marriage as a family entity, based on public coexistence, and long lasting, ensuring the community property and rights in the company, whereas what is not forbidden is allowed, and that stable unions between homosexuals are not prohibited by any law, considering that stable relationships are homosexual marriages based on affection and mutual solidarity, observing the identity of purpose between homosexual marriage and stable relationships, are thus legitimized unions homo as true families since lasting public and continuous case as already settled in different courts in different districts of Rio Grande do Sul, Minas Gerais and Bahia, whereas the Constitution through Article 3., item IV, 5. Subsection I and 7., item XXX states that the human dignity should be protected, without discrimination based on origin, race, sex, color, age or any other form of discrimination, therefore, through the sovereign will of the parties, is this act and document valid in full For legal purposes, since lawful and fair in accordance with the basic principles of universal human rights and the Constitution of Brazil, serving as a document proving that the parties should enjoy the full benefits and rights inherent in marriage.

They confirm that the undersigned this agreement stable satisfy the formal criteria required by the Regulatory Instructions of the National Institute of Social Security (INSS) of paragraph 25 and 50 of 7-June-2000 and 8-May-2001, respectively through which lays down procedures to be adopted for the grant of pension on the death of their partner homosexual, legitimizing in its Article 3, XIII "any other documents that may lead to the conviction of evidence of stable and economic dependence on the homosexual partner. "And because they are under the parties undertake to register in this book the eventual dissolution of marriage if they are to undo this contract, signed this document along with witnesses to ensure the accuracy and correctness of homosexual stable union.[15]

Presidential position

Same-sex couples in Brasília.

Brazilian president Luiz Inácio Lula da Silva stepped up to defend LGBT rights in an interview to TV Brasil in 2008. For the first time ever, Lula said loud and clear that he is in favor of civil unions, and that it is time to stop being hypocritical about the subject.

"There are men living with men, women living with women, and many times they live a balanced and even extraordinary life," stated the president. "The one thing that really bothers me is the fact the the politicians who are against civil unions never refuse a gay vote, and the state (which denies gays of civil unions) does not refuse taxes paid by homosexuals. Why is that? The only thing that matters is that these individuals are Brazilian citizens, and respect the Constitution. The rest is up to them, and I am in favor of civil unions," he added.

On more gay rights advances, this week the Superior Court of Justice ruled that there is no reason why a stable same-sex couple cannot be recognized as a family under the country's laws. This was the first time the high court considered the rights of a homosexual couple under family law, rather than patrimonial law.[16]

Binational same-sex couples

     No information
Homosexuality legal      Same-sex marriage      Other type of partnership (or unregistered cohabitation)      Foreign same-sex marriages recognized      No recognition of same-sex couples
Homosexuality illegal      Minimal penalty      Large penalty      Life in prison      Death penalty

  

To date, more than twenty countries worldwide recognize same-sex couples in a permanent relationship for immigration purposes, which includes Andorra, Australia, Belgium, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, and the United Kingdom. In the Americas, Brazil, Colombia and Ecuador recognize many marriage rights through same-sex civil unions, including equal immigration rights for same-sex couples. Brazil was the first country in the Americas to fully recognize same-sex unions and to grant all rights guaranteed to an opposite-sex civil union to a same-sex civil union. The primary rationale for allowing foreign citizens to gain Brazilian residency through their Brazilian same-sex partner comes from Brazil's federal constitution, which establishes that every citizen shall be guaranteed the power to exercise his or her fundamental human rights. Within those fundamental rights are the right to a family and freedom of movement. The Brazilian legal system ensures that all citizens, regardless of gender, are protected from state interference in how they choose to form a family as well as the right to reside and work anywhere in Brazil with their chosen partner, regardless of the nationality or gender of their partner.

In order to respond to the concerns about the possibility about potential immigration fraud, Brazil's immigration authority enacted the Administrative Resolution Number 5 in 2003, which establishes the criteria under which Brazilian residency should be provided to foreigners in committed partnerships with either Brazilian citizens or foreign holders of Brazilian temporary visas, without distinction to either partners' gender. The resolution establishes that for the foreign partner to be granted residency status, the applicant must demonstrate a permanent civil union with his or her partner that has been issued by a Brazilian authority or a corresponding foreign authority, thereby providing proof of the relationship. This can include certificates of marriage or civil union in Brazil or another country, affidavits from friends and family, evidence of a natural or adopted child raised by the couple, or evidence of financial support.

Such requirements not only succeed prevented immigration fraud but also effectively disproved the dire warnings of critics around the world that extending immigration rights to same-sex couples would somehow result in a surge of fraudulent claims of fake couples falsely claiming to be gay or in committed relationships solely to gain citizenship rights. This has clearly proved to not to have been the case in Brazil, since the criteria for proving the committed nature of same-sex unions is at least stringent as those for opposite-sex union. Given that the proposed U.S. law offers numerous safeguards of its own to prevent immigration fraud, the proposed legislation is just as extremely unlikely result in a rise immigration fraud in the U.S. as it has been in Brazil or in the nineteen other countries that presently extended immigration rights to same-sex-couples.[17]

See also

Notes

  1. ^ LGBT civil unions in Brazil
  2. ^ Same-sex unions - Brazil - Aspects
  3. ^ Currently, gay couples may adopt but only one partner is recognized as legal guardian as a single person, Brazil President Calls Gay Leaders To Landmark LGBT Rights Summit, 365gay.com,6 December 2007
  4. ^ Countries that recognise or proposed to recognise same-sex relationships, Stonewall UK
  5. ^ http://www.jusbrasil.com.br/noticias/134724/inss-deve-equiparar-homossexuais-e-heterossexuais-em-todo-o-pais
  6. ^ http://www.athosgls.com.br/noticias_visualiza.php?contcod=20777
  7. ^ http://www.ipreddiadema.sp.gov.br/infoarq/informativo-nov05.pdf
  8. ^ http://ultimainstancia.uol.com.br/noticia/35775.shtml
  9. ^ http://www.joaopessoa.pb.gov.br/noticias/?n=7078
  10. ^ http://revistaepoca.globo.com/Revista/Epoca/0,,EDG60663-6014,00-UNIDOS+PELO+VISTO.html
  11. ^ http://www.sistemas.aids.gov.br/imprensa/Noticias.asp?NOTCod=52191
  12. ^ http://zerohora.clicrbs.com.br/zerohora/jsp/default.jsp?uf=1&local=1&newsID=a1834954.xml
  13. ^ http://glsplanet.terra.com.br/trilegal/
  14. ^ http://www.prsp.mpf.gov.br/taubate/acp/acp_casamento.pdf Full text of the Ação Civil Pública asking the recognition of same-sex marriage in Brazil (Portuguese)
  15. ^ Basic Model of LGBT Stable Union Contract
  16. ^ Opinion of Lula about LGBT rights
  17. ^ Bi-national Same-sex Couples

External links

  • (English) [1] — Full text of Bill Project 1151 (Unofficial Translation)







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