Reconhecimento extrajudicial da filiação socioafetiva: análise propositiva das consequências jurídicas e financeiras para pais e filhos interessados, para a sociedade e para o Estado

Abstract

This work proposes an analysis of the voluntary recognition of socio-affective filiation carried out extrajudicially; that is, directly in extrajudicial notary public and civil registry offices. In this context, the following problem is presented: what are the legal and financial consequences – for interested parents and children, for society and for the State – of the de-judicialization and, more specifically, the voluntary recognition of socio-affective filiation carried out extrajudicially? The proposal of guiding questions was chosen, as opposed to the formulation of hypotheses, since the issue under consideration requires answers to the questions. The deductive logic reasoning method is used to analyze the public policies of de-judicialization and of expansion of legal access, focusing on the analysis of the legal and financial consequences – for socio-affective parents and children, for society and for the State – derived from the voluntary recognition of socio-affective filiation in the notarial realm. This is achieved through bibliographical, documental, and jurisprudential research. To this end, it examines the family in a brief historic evolution, initial considerations and the foundationsthat guide Family Law. The phenomenon of the de-judicialization is discussed so that its effects are better understood, considering the enactment of the Regulations (Provimentos) 63/2017 and 83/2019 by the National Justice Council, specifically in regards to the possibility of social-affective filiation recognition through a non-judicial route. Relevant issues about the above-mentioned regulations are addressed; a comparison is drawn between the extra-judicial recognition of social-affective filiation, adoption, and the Brazilian-style adoption; the multi-parenthood institute is also analyzed. The nuances of the notarial and registral activities are explored so as to clarify the general concepts and principles that serve as guidelines to professionals of those fields, in order to ascertain the advantages and disadvantages for socio-affective parents and children, for society and for the State, of the advancement of filiation recognition. The results obtained with the present study are based on the following consequences: a) for the State: it relieves the Judiciary and preserves the treasury; b) for society: it broadens the access to the legal system, strengthens citizenship, and expands efficiency to the concept of human dignity in the context of family and civil filiation; c) for socio-affective parents and children: financially more beneficial; enhances the autonomy of the will; faster procedure, with legal certainty, in addition to strengthening equality between voluntary recognition of biological and socio- affective filiation; succession; child support; social security; social benefits; creation of familial bonds; exercise of paternal powers; child custody and visitation rights; possibility of socio- affective parents’ surname being added to the child’s name. And, as a result of this research, a newsletter on the theme of extrajudicial recognition of social-affective filiation was created, with the objective of disseminating information to the population, mostly the socially and economically vulnerable individuals, so that the interested ones can take advantage of the legal and financial consequences of this innovative measure