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 powerthe 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 concernsnamely the emancipation of women and
youngstersand 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
marriageincluding 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 TrabalhadoresWorkers’ 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 BrasileirosNational 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
arguableof 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."