It’s the law

    It's the law

    After 22 years of discussion, the Brazilian senate has approved a
    new civil code. It will replace a document that has been considered exemplary by some, but
    that has begun to show its age after serving the country for 80 years. Some argue that the
    new text is old on arrival and a few others believe that the best thing would be to just
    leave the good old code alone.
    By Alessandra Dalevi

    When the Brazilian civil code was created in 1917, Brazil was a young republic only
    27 years old. The president was Venceslau Brás Pereira Gomes (1914-1918) and the country
    had 28 million inhabitants compared to 161 million today. That year saw several strikes
    from workers in São Paulo who demanded among other things a ban on child labor for
    children under the age of 14, the end of night shifts for women, and an eight-hour work
    day. There were then a mere 1757 cars in the city.

    That same year, 84 women took to the streets of Rio de Janeiro demanding that they be
    allowed to vote. It would take 15 more years before ballots would be secret, women would
    be allowed to vote and the eight-hour workday would become law. In São Paulo, painter
    Anita Malfatti (1896-1964) scandalized society and became a pioneer of the modernist
    movement by exhibiting 53 of her cubist-and-expressionist-inspired paintings. It was also
    in 1917 that Brazil declared war against Germany after having a ship sunk by the Germans.

    Introduced on January 1, 1917, the civil code replaced an institution that was
    inherited from Brazil Empire, the Kingdom’s Ordinances. Those laws had been written at the
    end of the 16th century, during the Spanish colonization, by King Philip II (1527-1598),
    known as Philip I in Portugal. Since the introduction of Brazil’s first constitution in
    1824, two years after the country declared its independence from Portugal, jurists from
    the empire have talked about developing codes that would regulate behavior in the civil
    and penal areas.

    Proposed by renowned jurist Clóvis Bevilacqua, it would take 16 years of discussion
    for the present code to be approved and one more year before it would go into effect. A
    reflection of the times, the old document opens with "every man is capable of rights
    and obligations." The wife is considered a mere extension of the husband, who wields
    all the power—the so-called paternal power.

    In 1975, when President General Ernesto Geisel (1974-1979) decided the antiquated code
    needed some updating, Brazil was still in the middle of a military dictatorship that would
    survive another 10 years. Divorce would not be allowed until 1977 and the death penalty
    and life in prison would be abolished in 1978. It was this project proposed 22 years ago
    that Brazilian senators approved on November 26, 1997, with a final vote being expected
    from the Câmara dos Deputados (House of Representatives) in the coming months.

    The new code is an attempt to consolidate rules that today are spread across more than
    50 decrees and laws, as well as legal practices established during the last eight decades.
    The laws deal with the individual’s day-to-day activities, including family relationships,
    acquisition and disposal of property, various business and personal contracts, and legal
    age.

    The writers of the new code adhere to the theory advanced by a current of Brazilian
    jurists, who believes that a single document containing the basic norms of the law gives a
    firmer juridical base to the country than a series of rules, laws, decrees, case law and
    constitutional provisions.

    It might take a long time before the new code starts to make a difference in the lives
    of Brazilians citizens. Even assuming that the statute passes in the House in 1998 and is
    signed immediately into law by President Fernando Henrique Cardoso, the new civil code
    would not become the law of the land until twelve months after Cardoso’s signature.

    THE LONG AND
    SHORT OF IT

    As presently written, the new civil code project has 2,073 articles contained in nine
    books. While the last book deals with what is called "final and transitory
    clauses" the other eight discuss family, personal rights, property, business
    activities and wills among other subjects.

    With all the delay, however, it is doubtful that the new law will properly deal with
    some of its main express concerns—namely the emancipation of women and
    youngsters—and be an adequate response to those asking for a statute in step with
    political correctness.

    The project was introduced in the senate by Bahia senator and lawyer Josaphat Ramos
    Marinho, 82, from the Partido da Frente Liberal (Party of the Liberal Front), a party
    allied to the Fernando Henrique Cardoso administration. Marinho called the old document
    "paternalistic and individualistic," while renowned jurist Miguel Reale
    described the old text as "overcome by the historical process."

    Referring to the document approved by the senate, Josaphat Marinho declared: "The
    main difference between the new code and the one now in force is the social character of
    the new law, which goes well beyond the individualistic or privatist feeling."

    The senator often walked a fine line between the forces of modernization and those who
    would prefer to leave things the way they are. Despite the opposition, Marinho was able to
    convince his colleagues in the senate, for example, that the project should keep a rule
    allowing the marriage of a woman, who is at least 16 in cases she lost her virginity in
    order "to protect her honor". Marinho was convincing enough when he said the new
    code should reflect the average thinking of society. This aspect of the honor, he
    stressed, is still very important for many families.

    Following in the steps of the 1988 constitution, the project determines that divorce
    cannot be finalized until two years after the couple’s separation. Initially the text
    required the length of separation to be five years.

    The new text also addresses equality between men and women, and abandons the concept of
    paternal power in favor of family power. In a reversal of the current law, men will not be
    allowed to get a marriage annulled by alleging the woman wasn’t a virgin when he married
    her. Between 1984 and 1994 the code endured the scrutiny of several congressional
    committees and suffered so many changes that the document listing the paths taken by the
    code is a 27-page report. However, despite lengthy discussion, the code approved by the
    House in 1984 still stated that "every man" has rights and obligations; this has
    been corrected to read "every human being." These and other changes have been
    introduced by a multiparty special commission created in 1995 to revamp the code’s text.
    The Senate examined 366 amendments presented by the House, to which Josaphat Marinho added
    127 new propositions of his own.

    TRYING TO STRIKE
    A BALANCE

    According to Senator Josaphat Marinho, the new code deliberately does not try to be all
    inclusive. He explained the reasoning behind this strategy: "I have left a escape
    clause in the law, which should be flexible enough to allow the inclusion of provisions
    that only life can teach. In those cases a judge will decide."

    Even an updated and spruced-up code will not answer many specific questions and
    dilemmas. Intentionally, the new text is not a trailblazer, but a repository of
    long-established norms, principles, and laws. Controversial topics like cloning, organ
    transplant, in vitro fertilization, sperm banks, and surrogate motherhood are not even
    mentioned in the text. And when dealing with subjects like family relationships, only the
    most general of rules are explored, without mentioning, for example, same sex partnership
    and all its implications.

    The concept of "legitimate" marriage and family has also been abandoned to
    conform to the Constitution, which considers a "family entity" an informal and
    stable union between spouses. What the Magna Charta does not specify is how many years a
    man and a woman have to live together before their association acquires the same status
    before the law as the official marriage. The new code requires that the couple have to
    cohabit for at least five years, a term which is reduced to three when there is a child
    born from the union.

    Since there are no statistics about the number of couples who live together without
    being formally married, the number is generally inferred from the steep fall in the number
    of official unions. While there were 936,000 formal marriages in 1984, this number fell to
    763,000 ten years later.

    The present civil code presents more than a dozen restrictions on
    marriage—including age (16 for women and 18 for men)—that can lead to annulment.
    It also forbids an adulterous man or woman from marrying the lover who has been condemned
    for the crime of adultery. The discovery that a partner is a homosexual is also enough to
    annul a marriage. Most of these rules should change.

    While the present code considers legitimate only those children conceived in a legal
    marriage, the revisions approved by the senate eliminate any distinctions between
    legitimate and illegitimate. The new code omits any reference to children as being
    legitimate, illegitimate, incestuous, the result of an adulterous affair or adopted. There
    is no distinction any more.

    The change in this area is so drastic that a father will not be allowed to dispute
    paternity while he is married. Any paternity test, for example, may only be done after the
    couple’s separation. The proposed document also lowers from 30 to 25 the age a person must
    be to adopt a child. Foreigners will be allowed to continue adopting Brazilians and taking
    them to live overseas, but the rules for this practice will be defined later through a
    special law.

    The new statute should put an end to situations in which one of the spouses is unable
    to take action because his or her companion refuses to sign papers. This happens, for
    example, when the man or the woman wants to start a business and the other is against the
    idea. Today, the partial or universal community property status of a couple, which comes
    into effect upon marriage, makes one dependent on the other in a number of transactions.

    The old code requires men over 60 and women over 50 to marry in an absolute
    non-community property regime. The idea is to protect older people from being taken
    advantage of by people who are only interested in getting the spouse’s money. This
    paternalistic approach is seen as too condescending and even unfair by some experts,
    however.

    Associate Justice Antônio Cezar Peluzo, from São Paulo’s Justice Tribunal criticizes
    the law arguing: "It is as if age eliminates all discerning capacity among
    citizens."

    When there is controversy the new text generally opts for a more traditional and
    conservative point of view. Despite all the liberalization among married couples in
    Brazilian society, the new code will still consider adultery grounds for preventing a
    parent from obtaining custody of the children. Josaphat Marinho considered excluding
    adultery in such cases, but he was dissuaded by supreme judge Moreira Alves, a
    conservative, who acted as an informal consultant for Marinho.

    Moreira Alves argued that the clause should be retained because the penal code still
    considers adultery a crime. As a slight concession to modernity, however, the word
    "responsibility" is substituted for "blame" when the subject is loss
    of rights in the judicial separation. Other reasons for losing custody of children include
    dishonorable conduct and the voluntary abandonment of home for one year.

    Under pressure from the Church the document also does not alter the section that deals
    with abortion, establishing that an individual’s rights begin at the moment of conception
    and not when the baby is born, allowing special protection for the unborn, as a previous
    version of the text read.

    NOT EVERYONE
    IS HAPPY

    The new statute doesn’t mention the touchy subject of civil union between homosexuals.
    Aides to Marinho informed that the senator tried to reach a balance when writing the law
    in a way that norms well established by society are kept and reaffirmed, with some leeway
    for advancement, but without any "excessive liberalism."

    Even among the feminists, who for years have been championing the adoption of a new
    civil code, the imminent arrival of the statute is producing only lukewarm enthusiasm.

    Rosiska Darcy de Oliveira, president of the National Council of Woman’s Rights,
    although considering the new norms of "fundamental importance" complains that
    some of the rules mainly on the field of family law have already become antiquated.
    According to her, the project’s authors were not able to keep pace with the rapid
    development of the Brazilian society in the last decades.

    A harsher critic of the text is Luiz Mott, the outspoken gay leader, who is professor
    of Anthropology at Universidade Federal da Bahia (Bahia’s Federal University) and
    president of Grupo Gay da Bahia (Bahia’s Gay Group). Mott says that he wasn’t surprised by
    the conservative tone of the proposed code and its refusal in dealing with civil union
    between homosexuals. "It would be hard to expect courageous positions from
    conservative senator Marinho," he declared, "but it is fundamental that the
    civil code be attuned to modern times and to public opinion, which is already in favor of
    gay unions."

    Arguing that minorities should not be suppressed, lawyer José de Castro Bigi, an
    expert in family law, also defends the inclusion of the subject in the new statute.
    Respected jurist Miguel Reale, 87, who presided the group that in 1975 prepared the new
    code’s first draft, disagrees, however, pointing that such matters should not be discussed
    by the code, but by special legislation. Reale contends that the subject of civil union
    among people of the same sex is still too controversial to be included in a wide-ranging
    document as the civil code.

    The new text has also been criticized for not adopting some laws that have been
    introduced in the country more recently such as the Estatuto da Criança e do Adolescente
    (Statute of the Child and the Adolescent) and the Código de Defesa do Consumidor
    (Consumer Defense Code).

    SOME KUDOS
    FROM THE LEFT

    The code got some accolades from the opposition though. The 59 senators (70% of the
    whole senate) who came to the first session in which the project was discussed loudly
    applauded Josaphat Marinho. Senator Benedita da Silva from Rio, talking on her own and in
    name of the PT (Partido dos Trabalhadores—Workers’ Party), praised the project for
    adopting modern concepts that benefit women, the environment and minorities, all of them
    overlooked in the old document.

    On the other hand, more opposition came from the Catholic Church’s CNBB (Conferência
    Nacional dos Bispos Brasileiros—National Conference of Brazilian Bishops), an
    organization that until recently was better known for its combativeness and as a bastion
    of liberalism many times in opposition to Pope John Paul II.

    Father Clairton Alexandrino, secretary of CNBB’s Pastoral Committee on Family,
    criticized the section of the project that legalizes the situation of unmarried couples
    who live together for at least five years. According to him, that clause contributes to
    the disintegration of the family: "This is an innovation that grows as a horse’s
    tail: downwards," he complained. "The code suffered an involution. The majority
    of representatives and senators call themselves Catholic or Christian. The problem is that
    they don’t reflect the Christian thinking."

    The section on family planning, which states that the couple have the right to use
    contraceptive, also did not go well with the CNBB. "This change is absurd,"
    maintained Alexandrino, "because in a veiled way it allows that the State help to
    prevent a birth."

    Pro-feminist congresswoman Marta Suplicy, from São Paulo, who is in favor of
    legalizing abortion, was also mad, but for the opposite reason. She criticized the
    anti-abortion stance taken by the new text. The original project written in 1975 by jurist
    Miguel Reale considered the beginning of life at birth, but Marinho, pressured by the
    Christian lobby, opted to keep the 1917 text, which gave rights to an embryo from the
    moment of its conception.

    DEALING WITH
    COMING OF AGE

    Adulthood comes earlier in the new code. Instead of 21, 18 is the minimum age for such
    activities as starting a business, buying property or marrying without having to get
    permission from parents or legal guardians. Society has already changed this rule, which
    the civil code only now tries to address. The penal code, for example, establishes that
    adulthood starts at age 18. And youngsters can vote as early as 16, with vote becoming
    compulsory at 18. A woman is considered an adult and is able to marry at age 16;
    interestingly enough men only reach legal age two years later. The new text equalizes the
    sexes establishing "that a woman can marry at age 16, but before she is 18, it is
    necessary that her parents or legal guardians give authorization for that." Marriage
    before this age only with a judge’s authorization, who can grant it only if the girl is at
    least 14.

    Since 1942 the Italian civil code has lowered to 18 the age their youngsters reach
    adulthood. In France this change happened in 1974. In the U.S. the age children reach
    majority varies from state to state, going from 16 (age in which some states will allow
    youngsters to get a driver’s license) to 21 (age in which individuals can get legally
    their first sip of booze).

    In a recent interview with daily Folha de São Paulo, Supreme Court minister
    Moreira Alves defended this reduction in age for attribution of civil responsibility
    reminding that there is a worldwide trend in that direction. He also mentioned his belief
    that penal responsibility should be lowered from age 18 to 16:

    "The individual at 16 has already the judgement for electing the president,
    senators, representatives, but he is considered incapable of distinguishing between good
    and evil. If, at 18, the youngster is going to be considered capable of highly complex
    acts like marrying, starting a business, signing contracts, and managing all his
    patrimony, we should ask ourselves if it is only at age 18 that he becomes capable of
    distinguishing good from evil in order to know if something is criminal or not."

    The new rules will affect more than 9 million youngsters, who would free themselves
    earlier from their parents’ tutelage. Census data from 1996 show 9,344,161 Brazilians with
    ages 18 (3,250,655), 19 (3,059,632), and 20 (3,033,874). All these young men and women
    need to go through what can sometimes become a bureaucratic nightmare to get their
    "emancipation certificate," which allows them to marry, start a business or
    simply be able to accept an apartment as a gift from their own parents.

    Despite the money involved and all the difficulties, emancipation certificates have
    been sought at an increasing pace on Brazilian cartórios (a notary-public like
    institution, but much more bureaucratic, that prepares birth and marriage certificates
    among many other attributions). A recent article on traditional daily O Estado de S.
    Paulo showed that the 1st Registro Civil de São Paulo, which covers the
    Sé downtown neighborhood, was granting an average of 538 of those documents every month
    by the end of August 1997. In 1996, when 5,682 certificates were prepared, the monthly
    average was 473.

    The get the emancipation papers a youngster has to bring from another cartório
    the so-called "emancipation deed", a document signed by five people (the youth,
    both parents, and two witnesses), with all the signatures duly notarized. The whole
    process costs in average $100, not computing the time lost in line and all the likely
    aggravations. The document has to be picked up personally at the cartório, generally
    two days after its submission.

    WHEN IT IS
    TIME TO GO

    According to the present code, a private will can only be a handwritten document that
    has been signed in the presence of five witnesses. The new text allows for the will to be
    done in a computer with the number of witnesses reduced to three. In extreme cases, a
    judge can decide the validity of a private will even without any witness.

    While the old law allows that a spouse disinherit the other spouse this practice will
    be now forbidden. Such an action will only be permitted in rare cases as when it is
    proven, for example, that a marriage partner attempted against the life of the will maker.
    Another change establishes that the heirs can use half of their share in the inheritance
    the way they see fit, not having to attend to the will’s dispositions. There will be also
    an end to the norm that allows the will’s author to block for a certain period the use of
    money or property. Such a change would prevent that owners of a large patrimony live like
    misers because they cannot use their inheritance.

    The intent of the original code when requiring that wills be handwritten was to prevent
    the risk of falsification. And supreme justice Moreira Alves, whose proposal was not
    approved, would like to maintain the same rule in the new statute. Jurists seem to agree
    that the best will is the public one, which is registered in a cartório. When a
    computer or a typewriter is used to write the will, the new code establishes, no erasure
    or blank spaces will be allowed.

    THE RIGHT TO
    BEAR ARMS

    Despite opposition from some senators, the final project approved by the senate allows
    owners to use force, including firearms, to maintain or repossess a property. Senator
    Josaphat Marinho did not buy the argument that the clause encourages violence and harms
    the federal government effort to proceed with its agrarian reform effort. Agrarian reform
    is the subject of a specific law, argued Marinho, adding: "This clause intends to
    protect property, including the property of weaker people."

    The project pares to three years the time the state will wait before taking a real
    state property that has been abandoned by its owner. The new code will also reduce from 20
    to 15 years the time someone has to live in an abandoned property before claiming its
    title in an action of adverse possession.

    Several of the measures adopted by the new code have already been in force due to
    specific legislation or for having been included in the 1988 constitution, among them the
    rights of children born from artificial insemination, the possibility of donation of
    organs when the donor is still alive, and the ability to sue for damages in cases of moral
    harm.

    While the present code says that "demented people from any kind are absolutely
    incapable of exercising acts of civil life," the new text gives mental patients some
    civil rights depending on the gravity of the disease.

    The new code deals with modern concepts as ecological law in order to protect flora and
    fauna. The project also ends the tyranny of commercial contracts. With the new law a judge
    will be able to void a contract if it imposes an unreasonable burden to one of the
    parties, is unethical, or hurts the community.

    LET’S JUST
    FORGET IT ALL

    Despite the years of discussion, the project for the code has been considered too
    secretive by some and its authors have been accused of refusing to listen to the society
    at large. According to Rodrigo da Cunha Pereira, lawyer and professor of family law at
    PUC-MG (Pontifícia Universidade Católica de Minas Gerais), there was not enough
    discussion about the subject. "It is an absurd," he told daily Folha de São
    Paulo, "that once again we wake up with a new law that was not discussed." A
    group of family lawyers from around the country sent Senator Josaphat Marinho a letter in
    which they demanded that he publicized the project.

    Some people, on the other hand, are questioning the need for such a code when all the
    norms included in the document are already in one way or another covered by existing laws.
    There are those who would just keep the old code. In an article published in the Folha
    de São Paulo, Harvard-graduate lawyer and former secretary general of the Justice
    Ministry, José Paulo Cavalcanti Filho, wrote: "The argument that the code is old,
    from 1916, is unconvincing. The German code is from 1896, and the French one from 1804.

    "The novelties announced as justification for abandoning a code of excellence, as
    ours, are extremely modest. They include the reduction— what is very much
    arguable—of the civil legal age, which could be achieved by altering the caption of
    one article (the 9th ) and new rules about illegitimate filiation. They are too
    few in relation to the 1807 articles of the current code."

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