Concubinate and Union Stable: Roman and Brazilian law

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ORIGINAL ARTICLE 

DUARTE, Nayane Gonçalves dos Santos [1], MORAIS, Carlos Nascimento de [2]

DUARTE, Nayane Gonçalves dos Santos. MORAIS, Carlos Nascimento de. Concubinate and Union Stable: Roman and Brazilian law. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 10, Vol. 09, pp. 114-128. October 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/concubinate-and-union

SUMMARY

This article aims to present an interpretation referring to concubinate and stable union in Roman and Brazilian law. The expression concubinate has the meaning of parallel or simultaneous union, and in the past it has already meant a stable union itself in the constitution of a family entity conceptualized as a parallel family, simultaneous family, partners or conviventes. Distinguish its concepts, historical aspects and applied legislations, using the presentation of doctrines and jurisprudence that deal with the theme addressed, in the Roman and Brazilian order. Describe the forms of concubinate, presenting how the issue has been resolved in the higher courts. Report the difficulties that people who maintain this type of relationship encounter in Brazilian legislation. Doctrine, legislation and jurisprudence defend some property rights that will be dealt with in the present work, pointing out the necessary issues for those who maintain a concubinary relationship to be upholds. The research used was theoretical, jurisprudential and descriptive. The methods used were inductive, historical and comparative.

Keywords: Concubinate, Stable Union, Heritage Effects.

INTRODUCTION

This article deals with the relationships of concubines in the daily life of society, as well as stable unions, seeking in the timeline of these relationships that in the eyes of society and the state, have always been repudiated and denied in history. At the time of Emperor Constantine the concubinary relations came to be effected in law, soon after with the emergence of Christianity the situation ceased to exist with the prohibition of the church. Still, he hasn’t disappeared from society. Currently, it is easier to resolve conflicts involving concubinate, through doctrines and jurisprudence with already pacified understandings.

A historical basis of these familiar forms different from the traditional will be drawn. Conceptualizing stable union as a relationship, intimate and informal, prolonged in time and similar to the bond arising from civil marriage, between subjects of different sexes (coviventes or partners), who do not have any marital impediment to each other. The term is a legal evolution of concubinate that arose in Roman law.

In this context, passing through the classification of distinct family forms, each with its peculiarity, such as homoaffective union by people of the same sex. It is observed that traditional family forms still exist in the 21st century, but over time, other forms of unions arise, all with the common scope of a search for happiness.

Aiming to analyze the problem of how people living in a stable union, as well as those who maintain concubinary relationships are based on Brazilian legislation.

The research is important to solve any problems arising from family formations different from marriage, such as concubinate and stable union.

The article is divided into three parts, in addition to the introduction and conclusion. In the first topic, historical passages and concepts of concubinate will be punctuated in the light of Roman law, its evolution and species.

Next, the concepts of stable union in Brazilian law, their characteristics and differences with the concubinary union are addressed.

Finally, in a third moment, expose the property effects on concubinate relationships and stable union, as well as the jurisprudential understanding on the subject.

Regarding the methodology, the research was carried out theoretical, jurisprudential and descriptive, seeking through doctrines, jurisprudence and laws to produce scientific work. The methods used were inductive, bringing jurisprudence on the theme and the historical and comparative, of the concept of concubinate in Roman and Brazilian law.

1. HISTORICAL EVOLUTION ON CONCUBINATE IN ROMAN LAW

In Roman law the existences of the forms of unions were expressed in four ways, the first being the jus civile, which formed the legitimate family among Romans, the second would be that of pilgrims between pilgrims or between pilgrims and Romans, who lived in sine connubio, contrary to the ius civile, thirdly stands out the union of slaves who had no legal recognition until the time of Emperor Justiniano contubernium, which granted them some rights; and, finally, that of the concubines, who related freely. (AZEVEDO, 2002).

According to Agerson Tabosa (2007, p.186), “The woman, united to the man by the concubinate, was called concubine, amica, hóspita, would focus, but not uxor. Nor was he a, because of the stability and fidelity of the union. With Justiniano, she can inherit 1/24 of the man’s estate with whom she lived.” Following the author’s understanding the concubines had a stability and a small portion of inheritance to inherit, some privileges are observed.

Thus, in Roman law, the institute called concubinate, an expression that comes from the Latin cum (with) cubare (sleeping), presented itself between the union of two people of different sexes, as if they were married, thus characterizing, as free unions, those that do not attach themselves to formalities required by the state, that is, unofficial unions with a certain durability in order to form a family , without affectio marital (desire to be married) and honor matrimonni (appearance of marriage).

In this context, it is observed that it was a family institute not sealed by law or disapproved by social conscience, so much so that people of exemplary morality lived in concubinage. Concubinate was not recognized, but was widely dissected by Augusto’s laws (CARLETTI, 2000).

The matrimonial laws of Augusto (lex iulia et papia poppaea de maritandis ordinibus), which created rigid impediments of a social nature, the union with women of lower social situation and lex iulia de adulteriis is highlighted. As a true way of maintaining lineages and with a visible discrimination of miscegenation with other races.

As verified, the law had not taken care of the concubinate, they prohibited, on the one hand, the marriage between senators and women of certain social categories (such as actresses). Moreover, they could not marry legitimately, but rather live in common, without being considered a criminal practice. These licit extramarital unions were the hypotheses in which concubinate was configured. (ALVES, 2014, p.672).

[…] after the era of the reigning Augusto, in the last years that followed, and emperor Constantine promulgated in 326 D.C., an edict, because of which the position of the concubines and their children worsened in relation to the previous period. It is certain that the Christian emperors considered the concubinate immoral, having tolerated it until the emperor Leo the wise (886 to 912d.c.), definitively abolished it (Nov. 89,91). (AZEVEDO, 2002, p.152)

In this same sense, to encourage people who lived in a concubine relationship, Emperor Constantine sanctioned; “[…] thus, he created destimulating sanctions of the concubinate, seeking to encourage concubines to contract marriage, beckoning them with the possibility of legitimizing their children, to submit to paternal power.” (AZEVEDO, 2002, p.152).

In this bias, with the advance of Christianity, emperor Constantine considered the impure concubinate, sanctioned means of punishing concubinary relations to encourage marriage. “In turn, Emperor Justiniano, seeking to limit the numbers of these concubinary unions, forbade man to have more than one concubine and none if he were married.” (AZEVEDO, 2002, p.155)

There was a certain difficulty for the doctrinators to conceptualize concubinage, and there is no precise concept on the subject. “From the central idea of a gilded coexistence between a man and a woman, without registered marriage (to use the Soviet legal system), that law comes through a jurisprudential history, trying to clarify this concept.” (PEREIRA, 2003, p. 40).

It should be pointed out that there are two species of concubinate most cited by most authors, that is, pure concubinate and impure concubinate.

Thus, pure concubinate; it presents itself when there is a lasting coexistence of a man and a woman, without restrictions to other marriages, as is the case of widowers, separated in fact, single, marriage annulled, divorced.

According to Álvaro Villaça (2002, p.190), “he considers pure concubinate, when he presents himself with the alluded elements of the concept expendido, that is, as a lasting union, without marriage, between man and woman, constituting the family in fact, without detriment to a legitimate family”

In the same sense, brings the author Roberto Senise (2013, p.197), “The natural or pure concubinate, without stability, but motivated by sporadic acts or free unions, although frequent, is not considered equivalent to stable union, because it is characterized by the informal union of people of different sexes, prologada in time”

Impure concubinate; he referred to adulterine when married people were involved in another relationship, that is, those who had more than one union in fact. “Spurious or impure concubinate is that effected between people of different sexes, in a stable way, but with some impediment to the realization of civil marriage. It can be classified into two, adulterine concubinate and incestuous concubinate” (LISBOA, 2013, p.197).

In view of the above, as already mentioned there are other species of concubinate; eg.; adulterine, “Adulterine concubinate, before the existence of matrimonial impediment of at least one of the concubines, who are civilly married to another person.” (LISBOA, 2013, p.197), and the incestuous “Incestuous concubinate, resulting from close kinship among concubines, that could prevent their civil marriage.” (LISBOA, 2013, p.197), This was repudiated and banned until contemporary times.

For Agerson Tabosa (2007, p.175); there is another figure called “sacrilegious – If the impediment were religious, if the father or mother, or both, had taken vows of chastity, the son of this union would be called sacrilegious. Modern Brazilian law does not constitute this case.”

Our Brazilian constitutional text of 1988 called the concubinate a stable union, an expression that translates, at present, this institution so old and so current. (PEREIRA, 2003, p.41). In the same vein,

With the advent of the constitution of the republic, propitiously nicknamed “citizen constitution” the old concubinate was elevated to the altitude of a family entity, going on to submit to the normativity of the rights of families and, mainly, gaining special protection from the state – the same dispensed to marriage. Of course, the concubinate concubinate that was raised to the characterization of family was the “pure concubinate” starting to be called a stable union, exactly with the intention of avoiding estimates or prejudices. (FARIAS; ROSENVALD, 2017, p.462)

As observed in this topic, it deals with concubinate in Roman law, being compared with Brazilian law, since the stable union that we will deal with in the next topic, is a legal evolution of the Roman Direct.

2. INITIAL CONSIDERATIONS ON STABLE UNION AND BRAZILIAN CIVIL LAW

After the conceptualization and presentation of the legal evolution of concubinate in Roman law, the figure of stable union in Brazilian law is analyzed, a figure admitted to the order, with rights under up.

As already mentioned the figure of stable union gave rise in 1988 in the Federal Constitution, legislative summary inserted by Agerson Tabosa “Until 1977, there was only in Brazil, under the protection of the State, a type of family, the legitimate family, constituted by civil marriage, indissoluble. It was not until 1977 that the divorce came, introduced by the Constitutional Amendment.” (2007, p.67). Constitutional Amendment, which was sanctioned as a law during the same year of its inclusion, began to cover stable union as a legitimate family, even with the absence of civil marriage.

In the first, it is essential to enter with the concept “Stable union is the relationship, intimate and informal, prolonged in time and similar to the bond arising from civil marriage, between subjects of different sexes (conviventes or companions), who have no matrimonial impediment to each other.” (LISBOA, 2013, p.193).

For the author Dimas Messias (2018, p.54); “The conventional family is constituted outside the marriage by stable union, characterized by the informal public union, lasting and continuing of man and woman. Until the 1988 constitution, there was no legislative provision”

In the sociological perspective, the family is a permanent institution, changeable in its structural characteristics in the face of time, and today integrated by people whose bonds derive from stable union, procreation and kinship (PESSOA, 1997).

These days when we refer to concubinate in Brazil, in a broad way without the modalities of impure or pure, it is only the loving relationship involving married people, who do not fulfill the duty of fidelity (adulterine), also known as “lovers”. “By welcoming the stable union as a family entity, the constitution adopted the guidance of Álvaro Villaça (family statute in fact) to protect the concubinate not adulterous and not incestuous.” (LISBOA, 2013, p.194)

In this sense, lover, is the one who lives with a married man or woman at the same time with the spouse, not being separated in fact, maintains affective relationship and lives with both relationships, so there are parallel families. (CARVALHO, 2018)

In the criminal sphere, the free relationship between men and women has never been treated as a crime or an unlawful act, but its consequences were projected, so alone, within the scope of the right of obligations, departing from the law of families. (FARIAS, 2017).

Following the idea of stable union being accepted and up-ed in Brazil, there are some requirements to characterize a stable union, non-adulterine and non-incestuous concubinate, among them we will mention:

The sex difference; Absence of marital marriage and marital impediment; Notoriety of reciprocal measurements (coexistence more uxório should be notorious, and should be treated as husband and wife, theory of appearance, even if there is no offspring in common, but that shows the interest of having life in common); Honorability (respectful union between man and woman, based on affectio and animus of forming a family); Fidelity or loyalty (without fidelity or monogamous relationship, the relationship becomes a status of “colored friendship”, without having a stable union. Being able to have a stable putative union, when the person and deceived in the relationship thinking to be the only person in the life of their partner (in this case the jurisprudence accepts and indemnifies the injured person along the lines of the stable union); and “Cohabitation”. (LISBOA, 2013, p.194)

On the cohabitation treated by some authors, the summary 382 of the Supreme Court, in these terms speaks: “Life in common under the same roof, more uxorio, is not indispensable to the characterization of concubinate.” That is, there are couples who live in different residences, because their work to cover the expenses of the household, are in a different location, this would not exclude the status of stable union,

[…] Yes, because in family law, the rigid idea of domiciled is not taken care of, but of the meaning of home, which is the meeting place of the family, where, in intimacy, family relationships are exercised in a lasting way. So it’s not only in marriage, but in concubinate. (AZEVEDO, 2002. p.214)

The Brazilian population is constantly changing and with this there are several forms of families. For example, Anaparental, Affective, Polyaffective, Natural or Nuclear Family, Extended or Enlarged, Surrogate, Affective, Mosaic or Reconstituted Family, Eudomonist, Democratic, Multiparental or Pluriparental, Binuclear, Parallel, Polyaffective, Online, ectogenetic family. We will work on some concepts; Stable union, Homoaffective, monoparental, matrimonial and putative.

Starting with stable union of people of the same sex, also cried out of isossexual (from greek iso, equal), had the same rights and duties stable heteroaffective union, although not provided for in the federal constitution, can not be excluded from the status of family to be deserving of the protection of the state. (CARVALHO, 2018).

Continuing the line of reasoning of Dimas Messias (2018), in homoaffective unions, that is, formed by people of equal sexes, man with man or woman with woman, even without prediction expressed in the Magna Carta, and protected as a family formation with rights assured equally of heteroaffective unions.

Family consisting of one of the ascendant or descendants, “Single-parent family, is the family entity constituted by an ascendant and his descendant” (LISBOA, 2013, p.233)

Civil unions recognized by Brazilian norms, i.e., civil marriage, “Matrimonial family, and formed on the basis of civil marriage by the spouses, including, not necessarily, offspring, natural or socio-affectionate. It is a legal union linked to cogent norms, living in full communion of life and in equal rights and duties.” (CARVALHO, 2018, p.53)

Other familiar forms that cause enough discursion sprees are putative stable unions, According to Dimas Messias (2018, p.495-496), “Putative stable union; can occur when one or both concubinates do not know of the impediments to marriage.” Even if there is concubinate in these terms, all the effects of stable union will be applied.

Art. 1.561. Although annullable or even null, if contracted in good faith by both spouses, marriage, in relation to them as well as to children, has all the effects until the day of the annulling judgment. § 1 If one of the spouses was in good faith in celebrating the marriage, its civil effects alone to him and his children will take advantage. § 2 If both spouses were in bad faith in celebrating marriage, their civil effects will only take advantage of the children. (BRASIL, ONLINE)

It is important to emphasize that, talking about legal protection and legal evolution, in Brazilian law, should cite the civil code of 1916, bringing concubinate as a marginal way which lasted until the civil code of 1932. It was through the jurisprudence that gradually the theme was taking place in our planning.

With the need for the regulation of concubinary relationships and stable union. Law No. 8,971 of December 20, 1994 (which they defined as “companions”, man and woman over 5 years old or with offspring – pure concubinate). Law No. 9,278 of May 10, 1996, trying to regulate what had already been brought by the federal constitution in its art. 226 (changed the concept of companion to “conviventes”, omitting the minimum time and existence of the offspring).

Given the holes, imperfections and contradictions of these aforementioned texts, the executive branch presented a project in the National Congress, in an attempt to make a statute for the concubinate.

At the end of 1996, a new bill was introduced, PL. n. 2.696/96 – prepared by the Ministry of Justice with the participation of notable jurists, being known as the statute of the union, and which intended to regulate the union in every way, with new concept, rights and duties, legal and conventional regime of goods, relationship with third parties, maintenance, inheritance rights, usufruct, succession vocation and conversion into marriage. (CARVALHO, 2018)

Finally, the civil code of 2002, before the statute was approved, supplied the omission of the previous code and regulated the stable union in Art. 1,723 to 1,727, recognizing pure concubinate, calling it a stable union (art. 1,723). (CARVALHO, 2018)

Impure concubinate is called only concubinate in the Civil Code art. 1,727. That is, every relationship coming from non-accidental unions between women and men with marital impediments form a concubinate.

In finalizing some concepts and legal developments on the subject, we will then deal with the property effects arising from these relationships.

3. HERITAGE EFFECTS ON STABLE AND CONCUBINE UNION RELATIONS

Likely what occurs in marriage, at the end of the stable union generates several effects that go beyond the rupture of affectionate bonds and that directly interfere in the patrimonial sphere of those involved.

On the subject, this is dealt with in the Federal Constitution in article 226, § 3, 2nd part, did not call for the issue of substantive laws that confer rights and impose duties on the conviventes as if the stable union were identical to marriage, but rather of adjective norms that would simplify or facilitate procedure for the conversion of stable union into marriage.

It is worth noting that the same rights inherent in marriage over the regime of partial communion of property apply to stable union. According to Roberto Senise (2013, p. 211), “The regime of partial communion of goods applies to property relations between the living people, in what is the case, the regime of partial communion of goods.”

Following the reasoning line of the previous paragraph, Law No. 9,278/96, in its 5th article, supplied the gap of Law No. 8,971/94. Thus the goods acquired by onerous securities and the goods acquired after the beginning of the union unilaterally or by the couple in duration, will be common property of the couple, that is, similar regime of partial communion of goods. Also called a stable union condominium, with the exception of unions departing from a previously stipulated written contract, or that was acquired prior to the union. Exclusive donations to one of them and inheritance are not communicated.

The author Roberto Senise (2013, p. 213) “The convivente is entitled to compensation for the death of the other convivente, in the event of an accident at work or transportation”. According to the opinion of summary 35 of the Federal Supreme Court: “In case of accident at work or transportation, the concubine has the right to be compensated for the death of the amassium, if among them there was no impediment to marriage” (BRASIL, Online). Understanding already pacified so that the concubinate cited in this summary deals with stable unions without impediments to marriage.

In this same sense, succession rights come from. When by the death of one of the companions, the other will have the right to activate the state to obtain the inheritance, as well as its care, housing and any social security privileges, without thereby being harmed in the surrogacy of rental contract of urban real estate. (FARIAS; ROSENVALD, 2016).

On the subject, Law No. 9,278 of May 10, 1996, Art. 7, protects people who have lost their partners due to death, that is, they protect their partners with material assistance, food and family housing. Having been the stable union (free union between man and woman) elevated to the condition of family entity, and with this all the rights equivalent, it remains to deal with the adulterinous concubinate.

About this right in relation to the adulterine concubine, “[…] against the interests of the concubine. Even before the new civil legislation, moreover, the concubine cannot receive any good from her amasio, if married is, because there is between her and the donor, in this case, marital impediment.” (LISBOA, 2013, p.212)

According to Dimas Messias (2018, p. 493), “The current understandings of both the federal superior court and the superior court of justice are not to recognize legal effects of family law on concubinate. But this interpretation is not absolute.”

When it comes to ordinary children, “[…] when involving common children of concubines, rights. In this dimension, the relationships between parents and children are all the same as those of any entity including marriage and stable union.” (LÔBO, 2011, p.186)

According to sumula 380 STF: “Proven the existence of a de facto society among concubines, it is appropriate to disjudge their judicial dissolution, with the sharing of assets acquired by the common effort.”

In a way, concubines will have the right of customers, as a condominium sharing, that is, they will receive the percentage that contributed to the purchase of said good, and they must resort to the right of obligations as a de facto company for regularization and division, outside the family law.

According to Álvaro Azevedo (2002), on the rights of impure concubinate, it is concluded that, although there are several transformations before and after the Federal Constitution of 1988, those involved in these relations remain unsure about their rights, being something purposeful of the legislator, in the sense that, however liberal these relations should not disrespect the first relationship in good faith or harm them with illicit and disproportionate enrichment , not confusing with stable union.

Thus, the sharing of assets arising from these relationships, apply the proof of acquiring the goods arising from common work for their effectiveness and they must be requested as a rule in the area of obligation rights.

In view of this, it is perceived that the current understandings, even with the constant changes in family formations, different from the matrimonial between man and woman, it is preserved the understanding of the existence of the union of fact in favor of parallel relations, that to say, concubinate has no property rights, other than the case of stable putative union, good faith of one of those involved or both, as was a registered case already of marriage between brother brother , not knowing they were brothers.

CONCLUSION

It is concluded that the forms of families in the Brazilian context have been changing in the day-to-day. In this, the concepts inserted at the beginning of the time of Christianity in Roman law, basically forming monogamous unions, between man and woman, with civil marriage, in the 21st century, these unions are no longer observed as often.

It is evident, in view of this situation, that the advances and alterations of our society has been emerging with new fields of family formation, such as affection, distance relationships, either through the stable union of people of different or equal sexes, with the end of previous relationships a reconstruction of new families, anaparental without the affective presentof biological parents, among numerous affective forms of family with or without kinship or conblood.

However, the contemporary Brazilian family establishes the foundations in the pretension of its participants, which are not limited only to those edited by the state, but to affection, which with other basic principles, such as happiness, respect, freedom and well-being, form the great main nucleus in the family context.

Thus, the stable union previously conceptualized as pure concubinate has the same effects of marital relationships, with specific laws to protect those involved in these relationships. The concubinate that has always been strong in our society, including in Roman law, before without any effect or protective law, today remains a parallel family, where the person does not abandon his current relationship, but simultaneously maintains other relationships, and it should be observed that this second union happens to be unaware of the first union to have family effects.

It is evident in view of this situation that the stable union differs from the concubinate, at the moment when the first relationship is effective without marital impediments, and one of those involved may be married in the role, but separated in fact, falling into a new union and perhaps being protected by family law.

On the other hand, concubinate exists concomitantly or in parallel with a marriage, this being an extramarital relationship, without the protection of family law, however there is an exception, an example of the case of stable putative union, apparently lives in a concubinary relationship, but one of those involved was unaware of the married status of the partner and was mistaken, ai yes, the majority understanding follows in hereditary protection and sharing on top of what was built with this relationship.

It is clear that these independent parallel unions must be up-ed and protected from being formed in a context other than those laid down in the current law.

In the context of impure or adulterous concubinate, that is, that exists when someone maintains a family entity from a concubinate with people prevented from marrying, such as those already civilly married. It is concluded that the rights of people living in adulterous concubinate should not be recognized, since there are impediments to previous relationships, not being a legitimate form of family formation, since the other party has impediment.

Parallel relations must be maintained in the right of obligations, because the adulterous concubinate is not a family union, having no rights over property there is not the goods that he acquired jointly with his “lover”, and should not be to remove from the companion or wife the goods he worked and contributed to acquire.

Thus, it is observed that there are several problems in the resolution of disputes with the end of these relationships. However, it is noted that it has several divergent decisions on the subject in the courts, due to the absence of specific rules that become available to all existing family entities regardless of their composition, which in an unfair or fair manner and with prejudices in their formation or not, are impaired in the trials, but each case is a case, and must be analyzed individually.

In conclusion, many institutions resort to civil law that is of Romanistic origin, showing and serving as proof of how law is a historical product.

REFERENCES

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_______.Lei n. 9.278, DE 10 DE MAIO DE 1996. Regula o § 3° do art. 226 da Constituição Federal. Diário Oficial da União, 10 de maio de 1996. Disponível em: http://www.planalto.gov.br/ccivil_03/LEIS/L9278.htm. Acesso em 05 de maio de 2020.

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_______. Superior Tribunal de Federal. Súmula n° 380. Comprovada a existência de sociedade de fato entre os concubinos, é cabível a sua dissolução judicial, com a partilha do patrimônio adquirido pelo esforço comum. Brasília, DF: Superior Tribunal de federal, [2002]. Disponível em:http://www.stf.jus.br/portal/jurisprudencia/menuSumarioSumulas.asp?sumula=2482. Acesso em 28 de abril de 2019.

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TABOSA, Agerson. Direito romano. 3. ed. Fortaleza: fa7, 2007

[1] Graduated in Law from the University of Fortaleza UNIFOR (2012). He has a postgraduate certificate in the labor and constitutional areas. Master’s student in Constitutional Law, with emphasis on private relations at UNI7.

[2] Lawyer, master of the Law Course of the University Center 7 de Setembro (UNI7), post graduated in Law and Tax Process, from the University of Fortaleza (UNIFOR).

Sent: May, 2020.

Approved: October, 2020.

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