A liberdade de não casar: união estável e o extrajudicial

Abstract

Carried out through deductive and comparative methods, the present qualitative research offers a study about the steady union of unmarried people, and proposes to analyze the role of the notary and the registrant on the subject, in order to examine whether such professionals fulfill the social function of “protection” to the family constituted by the referred family entity. Besides qualitative, this is a basic and exploratory research, carried out through a review of literature and documents, based on the analysis of the Brazilian legislation applicable to the subject, in particular, the Federal Constitution of 1988, the Civil Code of 2002, the Law n. 6.015/1973 (the Public Records Law) and the Law n. 8.935/1994, of Provisions of the National Council of Justice and the State Internal Affairs, of Statements of the Council of Federal Justice and, also, of the jurisprudence of the Federal Supreme Court, the Superior Court of Justice, the Court of Justice of Rio Grande do Sul and the Court of Justice of the State of São Paulo. The interest in this object of study begun since the graduation in Law, being intensified by drawing up public deeds declaring stable unions and providing assistance to users of the public service. A large part of the marital relationships currently experienced in society is configured as a steady union, this diffusion in the social environment and discussions in the legal scope demonstrate the topicality of the subject. The analysis of the steady union under the notary and registry aspect is not commonly found in Family Law books. However, it is a matter of great importance, both for those who intend to choose to start a family in this way, in order to know their rights, duties and effects arising from it, and for legal practitioners, since the matter involves several contemporary debates, as those related to a real equivalence to marriage. Furthermore, the family receives special protection from the State by the Federal Constitution of 1988, being relevant the examination of the enforcement of this "protection" by notaries and registrants in their field of action (extrajudicial notary offices), when the respective public deed and its registration. The results obtained indicate that the application of the principle of legality, fundamental in the field of public records in general, as well as the notarial and registry qualification, guarantee to the steady union, constitutive form of family, the right and duty of protection expressly provided for in the constitutional norm.