At first glance: whoopee! Rio state is getting its legal
house in order and finally complying with National protocols regarding lesbian
and gay marriage licenses.
But then, it is never that simple. Let me try to explain.
[Note: I am not a lawyer and do not have a complete understanding of all the
legal nuances here. But I have read through a bunch of stuff since the recent
ruling and offer these comments to help shed some light on the subject. Please
add your comments if I have gotten something really wrong.]
Civil marriage for lesbian and gay couples, which has technically
been legal in the State of Rio de Janeiro since the May, 2011 unanimous decision by the Supreme Court of Brazil allowing gay couples to enter into
legal Civil Unions (which were then later converted to marriages), is now
easier to obtain and no longer requires a legal petition to a judge. Or so it
seems.
While local LGBT rights groups are generally pleased with
the April 19, 2013 ruling by Judge Valmir Silva de Oliveira, Rio state’s
General Magistrate of Justice, determining that gay and lesbian couples can
apply for a marriage license directly through regular channels (thus skipping
the previous Civil Union step), there is some question as to whether easier
access to marriage will play itself out equally across the state given the
staunchly anti-gay marriage rulings to date by Judge Luiz Henrique Oliveira
Marques, of the First Court of Public Registry in Rio city. (Sorry for the long
sentence, I am starting to write like a Brazilian.)
In practice, when a marriage license is applied for at the
notary public office you complete some paperwork, present some documents, pay a
fee and then there is a minimum 15 day waiting period during which an
announcement of the request is published in the Civil Registry ostensibly so
others may contest the marriage on legal grounds and to give the local
prosecutor time to weigh in, should they have a beef. Then the application is
forwarded to the local judge in the Court of Public Registry for final
approval. Then voilà! You have a marriage.
So the recent statewide ruling that streamlines the process
for gay and lesbian couples is a good thing. The process is the same as it is
for straight couples. No more extra steps getting a Civil Union license and
then petitioning the court to have it converted into a Marriage license. Sounds
good.
But the reality to date for local gay and lesbian couples has
been that when they have petitioned the court to have their Civil Unions
converted to Marriages (consistent with the opinion expressed by the Supreme Court)
nearly every petition has been denied by the particular judge that presides in
the Court of Public Registry in Rio city. Now guess who is the judge who grants
final approval of marriage applications in Rio? Yep, same guy.
So people are worried that he will continue his longstanding
behavior of denying gay and lesbian marriages by not giving final consent in
the new streamlined process. True, the question before the court is not exactly
the same. But the judge has ticked off a lot of queer couples (more than 100)
in Rio to date and they are not looking forward to a repeat appearance of their
petition before this guy. Nobody wants to hire a lawyer and fight in court just
to get married.
Perhaps the judge will get with the program. Perhaps the
slight change in the process tips the legal scales such that the judge no
longer has the prerogative to deny petitions. Perhaps we should not be worried
by this whole “what’s past is prologue” thing.
Time will tell.
Why bother, some may ask. Just get the Civil Union. Throw a
party and invite your family and friends to buy you a new toaster, thirstier
bathroom towels or maybe a night out at a nice restaurant. Forget the whole “marriage”
thing. Well, as you might imagine, being in a legal “marriage” comes with
critical legal rights. The
differences between the two types of marriage go well beyond the status. For example, in a marriage the spouse may use the surname of their
partner, may be enrolled as a dependent on Social Security, a health plan or for
income tax purposes. Furthermore, spouses
can add the income of the household when applying for some types of financing,
the spouse is entitled to alimony in a separation, they automatically receive
inheritance in the event of death and they have the right to adopt a child. Outside
of marriage, all these issues need to go through the legal system.
But hey, we won the case, right? Who wants to be a Debbie
Downer? In the short term – whoopee! Luiz and I are getting married! The date
is set in June. Luiz’s friends have already been checking in about the party. Process
be damned – here we go (again). Plus, we live in Niterói, just out of reach of
the wicked witch of the west (we hope).
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