POLITICS-BRAZIL: New Civil Code Marks 20th-Century Changes

By Mario Osava Reprint | | Print |

Mario Osava

RIO DE JANEIRO, Aug 17 2001 (IPS) - Brazil’s Congress has passed a new civil code that serves as a window on the evolution of social customs and relations that occurred in this South American nation over the course of the 20th century.

The country reflected by the previous civil code, which dates back to 1916, looks completely different from Brazil today, commented attorney Iaris Ramalho Cortés, of the non-governmental Centre for Women’s Studies and Consulting (CFEMEA), in Brasilia, an organisation that tracks how women’s issues are handled by Congress.

The new legislation, approved Wednesday by the Chamber of Deputies, had spent 26 years under parliamentary debate and will only enter into force two years after receiving the president’s signature. The delay can be explained in part by its volume – 2,046 articles -, and by its complexity and the need for updates over the last quarter century.

The 1916 civil code remains valid until the new legislation takes effect. Some of the century-old precepts likely sound absurd to 21st century ears, such as the right of a husband to annul the marriage if he finds that his new wife is not a virgin, or the treatment of adultery as a crime, one that prevents the guilty individual from re-marrying.

The new code “is a good document overall, a step forward,” but it fails to mention several matters affecting Brazilian society today and maintains concepts that the women’s movement opposes, Ramalho Cortés said in an interview with IPS.

Adultery, for example, remains on the books as a motive for the dissolution of marriage, complained the CFEMEA legal expert, though she pointed out that the annulment no longer impedes the individuals involved from marrying again.

Feminist activists especially reject the inclusion “of two expressions that are outright discrimination against women,” said Ramalho Cortés. The first is “dishonourable conduct,” another charge that can be used to justify divorce, and is invoked primarily by the husband against the wife.

Until recently, a husband who murdered his wife was absolved if he believed that she had been unfaithful, because it was considered “a legitimate defence of honour,” she said, adding that Brazilian society continues to uphold a double standard, applying different rules to women’s behaviour than those used to judge male actions.

One article of the new code establishes that children must respect and obey their parents, as well as provide services in accordance with their age, “something that harkens back to servitude” and contradicts other laws that protect children and prohibit them from working until age 16, explained the attorney

The second “dangerous” expression carried over in the new code, says Ramalho Cortés, stipulates that parents may lose custody of their children if they punish the minors “immoderately”. This implies that parents are authorised to inflict “moderate” punishment in an era when family violence is a major problem worldwide, she criticised.

But despite these controversial articles, the new legislation represents many improvements, acknowledged the CFEMEA expert. Now, for example, the concept of “family” applies to any “stable union” between a couple, or to a group led by a single woman or man.

The downside, she said, is that the article defines a couple only as a union of a woman and a man, without leaving leeway for homosexual couples or the acceptance of same-sex marriages, which have been legalised in some countries and is a subject currently being debated in Brazil.

One item that stands out in the new civil code is the fact that ‘patria potestas’, or custody and control of children, is no longer the exclusive domain of the father. It has been replaced by “family authority,” which is also exercised by the mother.

Furthermore, the humiliating term “illegitimate child” has been switched to “born outside of marriage,” virginity is not mentioned, and the word “man” – when used in reference to all humans – now reads “people” throughout the text.

An attempt at gender equality even appears in the rules on surnames and marriage. Traditionally, a woman adds her husband’s last name to her own, but under the new legislation, the man may add his wife’s last name to his.

As far as divorce, the new code indicates that the former husband may demand a food stipend from his ex-wife, and child custody is no longer a priori assigned to the mother, but determined by which parent holds the “best conditions” to rear the children.

The regimen of the shared or separate holding of wealth, agreed in marriage, is no longer a definitive arrangement, but may be modified at any time. Inheritance is to be equally divided among children, parents and spouses, replacing the priority list existing in the still-valid 1916 civil code.

The articles on family relations hold the biggest changes from the old code because the family model has undergone enormous transformations over the last century, said Ramalho Cortés.

The new law’s approach to economic relations also stands out. Under the new civil code, contracts can be rescinded when they prove to be overly burdensome, which is common in Brazil where interest rates are among the highest in the world.

The number of years an individual would have to maintain effective possession of land in order to be granted legal ownership has been reduced from 20 to 15 years, no small consideration given that as many as half of Brazil’s 170 million people are believed to be squatting on land abandoned by the legal owners.

The new civil code has been adapted to Brazil’s Constitution of 1988 and has integrated the laws passed since then, such as the consumers’ defence code and the statute on children and adolescents.

The text “reflects today’s society,” which is quite different from the agrarian culture that produced the laws of 1916, commented legislator Ricardo Fiuza, rapporteur of the new version.

Nevertheless, the new set of laws sparked controversy in other arenas, beyond the women’s movement. Attorney Paulo Lins e Silva, an expert in family law, said the new code was born already outdated because it does not cover cloning, genetic testing or surrogate motherhood – current debates that need legal guidelines.

But a text that is out of date, agreed lawyers consulted by IPS, is to be expected from a bill that was originally presented 26 years ago.