The impossibility of analogy (as a means of interpretation) in cases involving separate ownership of property in a de facto partnership

Abstract

This article seeks to investigate whether the application of Article 1,641, II, of the Brazilian Civil Code, which establishes that people who are over the age of 70 must marry under a mandatory separation of property system, shall be also applicable, by means of analogy, to de facto partnerships. To this end the paper analyses elements such as the legislators’ intention during the draft of the 1988 Brazilian Constitution to equate the effects of de facto partnerships in face of marriage. The main legal differences between these two forms of relationships are also analysed, such as the cases involving joint property acquired during the relationship. It should be noted that while the property title applicable to marriage is subject to a series of specific legal provisions, de facto partnerships are limited to partial property rules, unless a written agreement between the parties has been previously established.