The Dating Agreement in times of 'let's see if it works'

In Brazil, when there is continuous and lasting public coexistence, the relationship can be characterized as a 'family entity', generating rights.

Living together has never been so popular. Marriage, as practiced by our grandparents, was replaced by “let's live together” and governed by “let's see if it works”.

There are those who believe, as writer Zygmunt Bauman defines it, that love is a “mortgage based on an uncertain and inscrutable future”. [1]

So love would, in essence, be free from guarantees. In today's world, where they offer us products and services for a "test drive" and promise us the return of our investment if we are not satisfied, it is natural that we are more discerning when it comes to choosing someone who comes, without a trial period, to be part of our lives.

Perhaps it's this demand on our partners that has caused the number of divorces to plummet [2] or maybe it's the fact that many of us came of age during the divorce boom of the 1980s/90s, and we are determined to act differently than our parents.

Whatever the reason, I'm sure you know people who (i) live together but want to build a family in the future and (ii) live together but are just boyfriend and girlfriend. These couples may have a lot in common: they travel, post several photos on social networks, exchange affectionate nicknames, go out to dinner, etc., but there is something essential that, at least for the Brazilian law, sets them apart: they want (or not) to build a family .

According to the Brazilian law, more specifically Article 1723 of the Civil Code, the “stable union between men and women, configured in public, continuous, lasting and established for the purpose of establishing a family” is recognized as a family entity.

Simple dating is not, by itself, a fact protected by law. However, when there is continuous and lasting public coexistence, the relationship may be characterized as a “family entity” generating legally enforceable rights and obligations.

It is in this scenario that the so-called “Dating Agreement” emerges, which, in turn, is nothing more than a document in which the parties agree that, even though they have an affective relationship, they do not have the objective of building a family. Thus, consequently, they would be putting aside the constitution of a common-law marriage.

Although it can be argued that the parties have every right to protect themselves from the possible "unwanted" recognition of a common-law marriage, which is noteworthy is the need to formalize, through a legal document, that there is only a simple dating , either because of the excessive judicialization of existing conflicts in this area, the constant state intervention in the private sphere, or because the media constantly highlights this type of "contract" (often even with connotations that reinforce certain gender stereotypes that no longer make sense in our society as: "Precautious men are signing no-commitment contracts with their girlfriends")[3] [4] [5].

As Marília Pedroso Xavier wrote: “It is very serious that the institute of common-law marriage has gained such extensive and numerous tentacles to the point of leading the legal system to promote the creation of instruments to avoid its configuration”. [6]

It is not defended, through this article, to end the common-law marriage or condemn the existence of the Dating Agreements, but rather to highlight the fact that, currently, although many have openly opted for a simple relationship, there is a supposed "need ” of making a declaration of a situation that would not need to be declared: a simple relationship, without the intention of starting a family.

If two adults want to spend days and nights in each other's homes, even if this coexistence takes place in a public, continuous, lasting way, but there is no desire to start a family, it is not a common-law marriage and there are no rights to be claimed.

Respecting the freedom of individuals, respecting their choice of the form of relationship they will adopt, the State could only recognize common-law marriages in situations where it is throbbing in the evidence in the case file, never in dubious, contradictory situations, in which the evidence show yourself divided, because that way you would be "marrying someone who didn't do it motu proprio [7]”.

Those who intend to date without creating rights and duties should be allowed to relate without fear of being harmed when/if the relationship comes to an end. Otherwise, relationships will no longer be about love, but about business.

Written by: Fernanda Pita.

You can also read this article here: https://www.jota.info/opiniao-e-analise/artigos/contrato-de-namoro-direito-civil-familia-10042021.