From the "Honest Concubine" to the "Homoafective Stable Union": Stretching the Boundaries of Legal Family Ties in the Brazilian Courts, 1930–2010

Beginning with the 1916 Civil Code and including the Constitutions of 1930, 1937, 1946, and 1971, Brazilian civil and constitutional law explicitly defined the family “protected by the state” as “grounded in legitimate, irrevocable marriage.” This narrow legal definition of the family, however, proved incompatible with the state's promise to promote social justice by expanding social welfare benefits for the families of certain categories of workers after 1930. Encouraged by the state's promise to protect “the family,” consensual partners (“concubines” living in “stable unions,” in legal parlance) and illegitimate children of qualified workers filed petitions for benefits. They met with increasing, but inconsistent, success, although their rights remained circumscribed until 1988, when a new constitution (which continued to guarantee families the “special protection of the state”) proclaimed “stable unions…constituted by one man and one woman,” legally equivalent to marriages. Once again, the constitution's narrow definition of family proved incompatible with the state's commitment to social justice. In a process that is procedurally nearly identical to that begun by “concubines” who filed petitions for family benefits in the 1930s, partners in same-sex stable unions appealed to the courts for recognition as families after 1988, for a wide variety of purposes. Once again, they have met with increasing, but inconsistent, success. And once again, their rights remain circumscribed.