Adequação da norma ao fato: uma análise quantitativa e qualitativa da percepção da publicidade nos relacionamentos homoafetivos e a possibilidade de relativização do requisito da convivência pública pelos Tribunais de Justiça

Abstract

This paper investigates the requirement of publicity within homo-affective relationships and from that it seeks to verify whether there is a need to contextualize it when the recognition of a stable union is sought by the national courts. Therefore, the general objective of understanding the publicity requirement in article 1.723 of the Civil Code in the light of the same-sex unions. Firstly, we seek to study the institute of a stable union, different forms of family and the legal role of affection. Then, it is studied especially about how homoaffective families, their agents and the joint judgment of unconstitutionality Actions (ADI 4277 and ADPF 123). In the end, it is analyzed by means of a quantitative and qualitative approach of the data provided by the participants to understand the dimension of publicity in attribution, as well how the judges' position in relation to this reality is investigated through jurisprudence. The methodology that best applies to reach the objectives is exploratory research, using the hypothetical-deductive method, with a quantitative and qualitative approach. Finally, it appears that publicity is seen by most participants as an obstacle to the recognition of unions since relationships are not lived in a explicity way in all social media or for all people they know. The courts also relate mostly favorable to considering the application of public coexistence in view of the specificity of each case.