The secure union is acknowledged as a household unit by the federal structure, which nonetheless prohibits any discriminatory prejudice to the exclusion or suppression of the rights of its companions, together with whether or not they’re of the identical intercourse or if they’ve One is married.
This understanding was unanimously adopted by the Second Public Law Chamber of the Court of Justice of the Sierra (TJ-CE) when granting a girl’s enchantment. She claimed social safety advantages due to the demise of her partner and her request was denied within the first occasion because the deceased was married.
The insured, a civil servant of Sierra State, had died in June 2016. After demise, her secure affiliation with the plaintiff was acknowledged in a go well with filed by the ninth Family Court of Fortaleza and ultimate judgment dated November 16, 2021.
“The appellant is in the fitting, as the fitting of the applicant is present in constitutional safety in addition to within the state regulation, and eventually, her secure union with the deceased servant was judicially recognised”, Judge María Iránide Moura Silva , determined to coordinate the useful resource.
The creator described early on that her secure union with the civil servant lasted till the final day of her life, the connection having a toddler and an “unquestionable bond of financial dependence” with the partner.
The courtroom of first occasion denied social safety advantages on account of demise on the bottom that “the truth that the deceased was married up to the date of demise, a reality recognized to the plaintiff, doesn’t preclude recognition of the fitting to demise pension”. prevents, due to the absence of authorized precedent and jurisprudential interpretation”.
The motion was dismissed “regardless of proof of the creator’s connection for an extended time period and with a well-known presence”, as highlighted within the sentence. The lady was sentenced to pay courtroom prices and legal professional’s charges, arbitrated at 10% of the case worth.
Despite the superior courts having the understanding not to acknowledge social safety rights for concubines and never to acknowledge secure union within the face of a pre-existing marriage, through Themes 526 and 529 of the Federal Supreme Court, the Attorney General of Appeals of Justice Revealed himself whereas retaining
According to Theme 526, it’s inconsistent with the federal structure to acknowledge a social safety proper (pension for demise) to a person sustaining a relationship with another married lady, since a concubine will not be equal for functions of state safety. Union ensuing from marriage, marriage and secure union.
According to Theme 529, the responsibility of constancy and monogamy by the Brazilian authorized and constitutional order prevents the popularity of a brand new bond, together with for social safety functions, if there’s a pre-existing marriage or secure union of one of many cohabitants.
The PGJ’s opinion thought of that, within the particular case, there may be Final judgment recognizing the frequent regulation marriage between the plaintiff and the deceased. “Therefore, whereas the mentioned judgment will not be overturned, it should produce its impact, holding in view the constitutional safety that jurisprudence is devoted to”.
The Reporter accepted the opinion and said that paragraph 3 of Article 226 of the Federal Constitution acknowledged the secure union as a household unit, not accepting any unconstitutional laws with a discriminatory profile.
The decide additionally cited Sierra’s structure, which ensures the insured’s demise pension in favor of the surviving partner, partner or partner, with out limiting advantages based mostly on gender, incapacity or financial dependence.
“Thus, from the aforesaid devices, there are not any additional questions relating to the matter, because it was acknowledged by the judgment of the courtroom, ultimate and inviolable, secure affiliation publish mortem between the plaintiff and the deceased State servant”, concluded the decide.
The judgment emphasised that the financial dependence of the appellant on the deceased is to be thought of beneath the phrases of regulation. While awarding the pension, the judgment stipulated that the fee ought to be made retrospectively from the date of administrative software for advantages made by the plaintiff in September 2016, one month after the demise of the civil servant’s widow.
The appeals provision additionally resulted in a reversal of the suo motu burden in favor of the plaintiff, ordering Sierra State to pay authorized charges set at 10%.
Civil Appeal 0140295-52.2017.8.06.0001