A recent discussion in Cabo Verde has brought attention to the concept of union of fact, and its implications on the country's legal system. According to Olavo Freire, the conversation deserves serenity, scientific rigor, and a systematic reading of the law. The discussion centers around the differences between union of fact and marriage, and whether the former should have equal legal effects as the latter.
The conversation began with a recognition of Dr. Geraldo Almeida's pioneering work on the subject, which started before 1994 and culminated in his master's thesis defense in 1994. The thesis received academic recognition from Professor Pereira Coelho, a prominent figure in Family Law. Dr. Almeida's work was later published in a book in 1999, allowing for a wider dissemination of his ideas. His contributions to the study of union of fact in Cabo Verde are considered significant.
The Cabo Verdean Civil Code distinguishes between marriage and union of fact. According to Article 1551, marriage is defined as a voluntary union between two people of different sexes, with the intention of forming a family through a full communion of life. Article 1560 defines union of fact as a stable, singular, and serious cohabitation between two people of different sexes, with the intention of forming a family. Although both institutions aim to form a family, the Code treats them differently.
The union of fact arises from a factual situation that is juridically qualified. Two people live together stably, singularly, and seriously, meeting certain legal requirements. The reality of common life precedes the legal recognition, which attributes consequences established by law. This recognition does not create the cohabitation but rather gives it legal effects. Therefore, it is different from informal cohabitation but not necessarily equivalent to formal marriage.
The core of the discussion lies in Article 1716 of the Civil Code. The article states that a recognized union of fact is considered, for all legal effects, as a formalized marriage, producing effects from the date of its beginning. However, the use of the phrase "é havida como" (is considered as) instead of "converte-se em" (is converted into) is significant. The legislator established a broad legal equivalence of effects but did not explicitly use the category of conversion or transformation.
Some argue that the recognized union of fact should be considered a marriage without formalities. This perspective has historical and sociological logic, and Dr. Almeida's work is considered essential in understanding the evolution of thought on union of fact. However, it is crucial to critically confront his conclusions with the subsequent evolution of legislation, jurisprudence, and doctrine. The history of union of fact can help understand its genesis but cannot replace the interpretation of current positive law.
The discussion on union of fact in Cabo Verde raises essential questions about the equivalence of effects and conversion of institutions. While some advocate for equal treatment, others argue that the distinction between union of fact and marriage should be maintained. The debate highlights the need for a thorough analysis of the current legislation and its implications on the country's legal system.
Key points
- The discussion on union of fact in Cabo Verde centers around the differences between union of fact and marriage.
- Dr. Geraldo Almeida's pioneering work on union of fact is considered significant in understanding the evolution of thought on the subject.
- The Cabo Verdean Civil Code establishes a broad legal equivalence of effects for recognized union of fact, but does not explicitly convert it into marriage.
