The National Council of Justice (CNJ) approved on Tuesday (14), by a majority vote (14-1), a resolution requiring registrars across the country to celebrate civil marriage and convert the stable homoafetiva in marriage .
Registrars may not reject the application as currently happens in some cases. CNJ's decision may be challenged in the Supreme Court (STF).
According to the president of the CNJ and the author of the proposal, Joaquim Barbosa, who is also president of the Supreme Court, the resolution seeks to give effect to the decision taken in May 2011 by Supreme which released the stable homoafetiva.
As the text of the resolution, if any notary refuses to implement civil marriage, the citizen shall inform the supervisory judge of the Court of Justice site. "The refusal will entail immediate communication to the respective supervisory judge for appropriate action."
The decision of the CNJ worth from the publication in the "Journal of Electronic Court", which has not happened to date.
Report published by G1 on Tuesday showed that last year, at least 1,277 same-sex couples registered their marriages in registry offices of 13 major capital, according to a preliminary survey of the Association of Notaries and Registrars of Brazil (Anoreg-BR).
Currently, to achieve the stable, the homosexual couple must follow the procedures notarized. Until now, for the wedding, they asked for conversion of stable union in marriage and it was up to each notary public, who may or may not grant.
Now, the conversion will be mandatory and effected through an administrative act, inside the registry. The notary, although organ extrajudicial, TJ is subordinate to the state.
Civil marriage of homosexuals is also under discussion in Congress. To Joaquim Barbosa, would be a nonsense to expect Congress to examine the topic to give effect to the decision of the Supreme Court.
"We will require the approval of the new law by Congress to give effect to the decision that it took the Supreme? It is a nonsense. "
According to Barbosa, the discussion of equality was the "heart" of the debate in the Supreme. "The council is removing administrative barriers to effective decision making by the Supreme and is binding [must be followed by the lower courts]."
Initially, the board only discussed the conversion, but later, the advice of CNJ distributed the proposal document showing that it is "forbidden" to notaries refuse "empowerment, celebration of civil marriage and conversion in stable marriages same sex. "
The Attorney General of the Republic, Francisco Sanseverino, who do not vote, opined against the board's proposal. "With respect to the positioning of the proposal, while laudable, except better judgment in the face of the grounds and objects of the direct actions of constitutionality, the automatic conversion of a stable union in marriage was not imposed on those actions."
The only vote against the CNJ was the youngest councilor, Maria Cristina Peduzzi. For her, define civil marriage between persons of the same sex is the job of Congress.
"I have no doubt that the union homoafetiva was recognized by the Supreme Court, and there he said the constitutionality of these unions and ensuring the civil effects produced by their unions. [...] I think this is a matter that would affect the Congress. "
Councilman Silvio Rocha diverged. "We removed the variety of sexes that no longer stands as a requirement that people have a fundamental right, which is marriage. It seems to me that the board does this on precedents (previous court decisions) and supported the Constitution itself. "
Councilman Gilberto Martins, to vote in favor of the project, said that despite the Supreme Court decision on the stable homosexual have been unanimous, three ministers of the Supreme were opposed to the possibility of the court judgment in ensuring civil marriage: Cezar Peluso, Gilmar Mendes and Ricardo Lewandowski.
The decision can be challenged in the Supreme Court. If this occurs, the questioning can be done by means of an injunction, type of action that is made to question the act of government.
The process would be distributed to some minister report, and the person concerned could request suspension of the resolution by injunction (interim decision). In this case, the rapporteur decide between provisionally suspend or take straight to the plenary discussion.
Stable x Civil Marriage
According Rogério Bacellar, president of the Association of Notaries and Registrars of Brazil (Anoreg), stable marriage and civil ensure the same property rights.
In both cases, there is a contract signed by a notary. The difference is that for the stable, the citizen still single marital status.
"Currently, if the rights are established in the contract, is the same thing as a marriage. It is agreed that each has the duty, the goods acquired before and during non-communicants (fall) or if all goods commune. "
When opening a bank account, for example, a citizen officially single, even if stable, no need to enter them mate. Already married, needs.
"Marriage is a formal union. It is possible to establish partial communion, fellowship full or partial separation. But if there is a contract, the stable union gives the same rights. "
In May last year, the Federal Supreme Court (STF) recognized the right of a stable union for same-sex couples. The decision serves as precedent for other instances of Justice.
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