Difference between marriage and common-law marriage

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The main difference between marriage and stable union is in their formation. In marriage, the bond between two people is recognized and regulated by the State, while in a stable union it is necessary for the couple to live together.

Marriage is a legal bond established between two people to form a family. This bond is carried out through a competent authority and based on conditions described by civil law.

Stable union is the relationship maintained between two people living under the same roof. It must have a lasting, public character and with the objective of constituting a family.

Both marriage and stable union are considered family entities. These are relationships governed by family law, guaranteed by the 1988 Constitution.

See the main differences and similarities between marriage and stable union:

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Stable union

marital status

Changes the previous status to Married. Does not change marital status.


Governed by Family Law, of the new Brazilian Civil Code (Book IV, articles 1511 to 1783) and recognized as a family entity.

Governed by Law 9.278/1996. According to the 1988 constitution, article 226, it is recognized as a family entity.


Formalized through a celebration made by a justice of the peace or a judge of law. Then it goes to the civil registry and a marriage certificate is issued. No formality. It happens when two people start to live together, forming a family entity.


If the couple has minor children, the marriage must be extinguished before the Judiciary. If there are no children and there is an agreement between the parties, the marriage can be dissolved by public deed at a notary office. Here the separation also takes place according to practice. If people stop living together, the stable union is extinguished.


The spouse is considered an heir and competes for the assets along with the children of the deceased. In the case of partial communion, the spouse is also entitled to half of the assets that were acquired during the marriage. The partner is not considered an heir if the stable union is not formalized.

division of goods

If it is not defined, what is in force is the partial communion of goods. Partial community property.

Right to death pension

It's right. The partner is also entitled, but will have to prove the stable union to the INSS.

Real Housing Right

It is guaranteed by the Civil Code, regardless of the property regime, and without a time limit.

It is not guaranteed by the Civil Code. There may be a time limit until you get married or form a new stable union.

Legal impediments Provided for by article 1521 of the Civil Code, it restricts the union between people with a degree of kinship by blood or affinity.

All legal impediments to marriage are also applicable to stable unions.

same-sex union Same-sex couples have the right to civil marriage. They have the right to have their stable union recognized.

Legal regime in marriage and stable union

In marriage, the couple can opt for a specific regime for the sharing of property, which must be defined in a prenuptial agreement.

The options are: mandatory separation of property, partial community of property, universal community of property, final participation in the aquestos and separation of property. If it is not pre-defined, what is in force is the partial communion of goods.

In the case of a stable union, it is the partial communion of goods that is in force.

formalization of the union

In marriage, formalization is mandatory and takes place through a celebration made by a justice of the peace. Then the formalization is forwarded to the civil registry, where the marriage certificate is issued.

In a stable union, formalization is not necessary. However, partners can choose to make a stable union pact. This pact can be made before a notary, through a public deed.

The formalization of a stable union guarantees several advantages to the couple, such as:

  • Note of the start date of the union;
  • Inclusion of the partner in health plans;
  • Right to inheritance;
  • Options on the property regime;
  • Right to food;
  • Real right of housing.

Division of property in case of death

In marriage, the first step is to know whether it was carried out in partial communion or elective total separation.

In the case of partial communion, only the assets acquired during the course of the marriage are common assets. However, in case of death, by right of inheritance, assets acquired before marriage can be concurred by the spouse, as well as by the children of the deceased.

In elective total separation, the spouse is not entitled to half of the assets, but becomes heir to the deceased's assets, as well as their children.

In a stable union, the partner is only entitled to what was acquired during the period of stable union. If there is no formalization of the union, the partner is also not considered an heir.

Right to death pension in each case

In marriage, the spouse only needs to go to an INSS agency with the marriage and death certificate, among other documents. There, you can apply for a death benefit.

In the case of a stable union, the partner is also entitled, but the issue is much more bureaucratic. The partner must prove the stable union to the INSS through an administrative procedure. The INSS may deny the request, which can only be resolved in the courts.

Elements that characterize the union

At the marriage, as it is recognized and legalized by the State, the marriage certificate itself characterizes the veracity of the union.

There are still three principles governing the union:

  • Freedom of union: marriage is only legitimate when it happens with the free expression of the will of the partners.
  • Monogamy: you can only have a marriage relationship. The existence of two or more marriages is not allowed.
  • Communion of life: partners must share the same ideals, in a greater reason, which is the family.

At stable union, as there is no recognition by the State, some elements have become essential characteristics in the recognition of this relationship:

  • Public coexistence: the couple must live a relationship in which they are usually seen together. That is, it cannot be a hidden relationship.
  • Continuous coexistence: the continuity of the relationship is an important factor to differentiate a stable union, with the objective of starting a family, from a casual relationship.
  • Stability: the relationship must intend to be lasting, without considering the possibility of termination.
  • Objective of forming a family: one of the most important elements of a stable union is the common objective of constituting a family nucleus.

In the past, the minimum time of coexistence of 5 years, the existence of children and cohabitation were necessary factors for the recognition of the stable union. With the enactment of the 2002 Civil Code, these factors are no longer required.

Legal impediments to the union

Both civil marriage and stable union have some legal impediments to the union.

According to article 1723, paragraph 1 of the Civil Code, all the rules provided for in article 1521, which deals with legal impediments to marriage, are also applicable to stable unions.

According to article 1521 of the Civil Code, the following cannot marry (or recognize a stable union):

  • People who are related in line, such as father and daughter (even in the case of adoption);
  • One-sided or two-sided siblings
  • People who are already married.

Marriage between the spouse who has suffered attempted murder and the person convicted of the crime against him is also prohibited.

same-sex union

In Brazil, heterosexual and homosexual couples have the same right to have their stable union and civil marriage recognized.

See also the differences between:

  • prescription and decadence

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