The court unanimously found that, despite not divorcing his wife, there was sufficient evidence to prove the unnamed man had a “true family” with his common-law spouse, reports the Society of Trust and Estate Practitioners (Step).
As a result, the wife and common-law spouse are each entitled to 50% of the surviving spouse pension benefits their partner left behind.
According to Alessandro Fonseca and Marcelo Paolini, of Brazilian law firm Mattos Filho, the court stated that granting the common-law spouse unequal treatment would result in “serious violation of the principles of equality and dignity”.
Take nothing for granted
In contrast, Fonseca and Paolini highlight a case, decided in 2010, in which Brazil’s superior court of justice held that a deceased man’s common-law partner was to receive the entirety of the social security benefits he left behind – while his ex-wife (from whom he was formally divorced) was not awarded any part of them.
“Anyone who thinks, nowadays, that her property rights are completely secured and protected against any competing claims, merely because she has a formal affective relationship, is mistaken,” say Fonseca and Paolini.
“With respect to affective relationships, it is impossible to determine with certainty what will prevail, in legal terms, for each case. Society’s values and their transformations will determine the position of the courts in future cases.
“It is better to formalise the status of the relationship publicly and avoid letting the Brazilian courts decide your fate,” they advised.
