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In the end, the Civil Code of 2002 ended up receiving and providing for the stable union (arts. 1,723 to 1,727), absorbing some doctrinal and jurisprudential guidelines, revoking the referred laws.

It is noteworthy that the Civil Code was unable to fully establish that the fundamental understanding of the stable union must come from constitutional commands. The family nucleus formed by two free people, even if not a man and a woman, will deserve protection from the State and guarantee the dignity of all its members3. For this reason, throughout all these years (after the entry into force of the Civil Code 2002), the Courts and the civilist doctrine, in particular, were in charge of defending and extending the guarantees given to married people also to those who lived in union stable4, including homosexuals5.

In this step, despite numerous “equations” from the stable union to the marriage, it does not have the same familae status as this6, however, there is no doubt that the objective of the stable union is to constitute a family (intuitu familiae) plus some characterizing elements established by law (arts. 1,723 to 1,727 CC) to be recognized as a family entity.

In fact, a good criterion for proving the stable union is the theory of the primacy of reality7 widely used in the orbit of labor relations, but which gains support in the right of families to show the beginning of the stable union, since it can be constituted devoid of any legal formality. This theory highlights that what is seen in reality is what happens effectively. Thus, the truth of the facts prevails over any formality.

Thus, in order to recognize a stable union in a real and effective way, it is necessary to assess the truth of the facts, that is, the daily events of how people live, with publicity about the relationship with society and family members (more uxoria ), communion of life, effort and affection.

The deed of stable union or even a private document attesting to it has a merely declaratory and not constitutive character. This means that if the stable union exists, its record will only reflect an earlier fact. If, however, there is not really a stable union, the record will be nothing more than a false declaration, as it will not serve to create it.

Paulo Lôbo8 adds that the stable union originates in the effective bond of the companions, being a legal act that does not require any manifestation or declaration of will to produce effects, being enough a “factual existence for the incidence of the constitutional and legal norms cogent and supplementary for the conversion of the factual relationship into legal “.

Indeed, not even living together under the same roof is a requirement to prove the stable union as enshrined in the 382 summary of the STF9. Not even the Constitution and the Civil Code address this requirement. The reality of the couple, the truth of the union intuitu familiae, is that of the concrete, accepted, authentic facts that legitimate to be partners erga omnes.

If the couple chooses to formalize a public deed of a stable union or a written contract, it will only facilitate the evidence of life in common. However, it will only serve as juris tantum proof because the factual relationships prior to any written document can demonstrate that the pre-existing existence of a family entity.

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