Partner, Lawyer, Industrial Property Agent
Marcelo has been working for almost 20 years in the intellectual property field. He is Vice-President of Intellectu[...]read +
by Marcelo Mazzola
June 03, 2019
In order to build a “free, fair and solidary” society, there cannot be any type of prejudice against nationality, race, sex, colour, age or any other form of discrimination (Article 3, I and IV of the Federal Constitution (CF)).
In addition, it should be borne in mind that the dignity of the human person is one of the canons of the Democratic State governed by the rule of Law (Article 1, III, CF).
In accordance with the Federal Constitution, all are equal before the law, without distinction of any kind, and “men and women are equal in rights and obligations”. The Constitution also ensures the protection of the family “in the person of everyone who forms a part of it” (Article 5, heading and item I, together with Article 226, §§5 and 8, of the CF).
But it has not always been so.
Prejudice is a secular phenomenon and, in a way, is confused with the very history of civilisation, at least in a large part of the world.
Nowadays, it is difficult to believe that women were once equated with slaves and foreigners (in Athenian democracy); considered “cursed” by the Catholic Church (in the Middle Ages); and cruelly chased as witches (during the Inquisition).
And what about women being prohibited from taking part in the Olympic Games, with them possibly being sentenced to death if they were caught watching the competitions? Strange times.
The situation of women in light of the Civil Code of 1916 and some legislative advances
In Brazil, the Civil Code of 1916 revealed women’s submissive role. The physical strength of men was cloaked in power and authority.
In this context, women were considered to be relatively incapable (equated with minors, spendthrifts and foresters) and all family decisions were taken by the husband (Article 233), who also had to authorise his wife’s entry into the labour market (Article 242, II).
For a long time women also could not vote, which was only changed with the Electoral Code of 1932 (Decree No. 21,076/32).
With the Consolidation of Labour Laws of 1943, maternity protection was finally assured, with the right to stability for a certain period and maternity leave being provided for.
On this historical trajectory, the Married Woman’s Statute (Law No. 4,121/62) eliminated the relative incapacity of married women, expressly setting out the collaboration of women in the “leadership” of married society (Articles 233 and 380).
In 1977, the Divorce Law (Law No. 6,515/1977) was enacted, which also brought significant advances. Women were no longer obliged to add their husband’s surname (Article 240, sole paragraph) and the marriage could be dissolved, breaking the marriage bond, allowing divorced men and women to follow new paths.
The enshrinement of equality in the Federal Constitution of 88 and its normative consequences
Without a doubt, the Federal Constitution of 1988 was the great normative framework for the gender equality, since it states that men and women were equal (Articles 5, heading and I, together with 226, §5, of the CF).
Since then, many infra-constitutional laws have increased protection for women, honouring gender equality.
Incidentally, it is worth mentioning the Civil Code of 2002 (“CC/02”), which, in Article 5, does not distinguish between men and women, stating that any “person”, upon reaching the age of 18, becomes fully capable of performing acts of civilian life.
In turn, Article 1,631 ratifies the idea that the exercise of family power rests with the “parents”, who are responsible for raising children.
The code also establishes that family planning is a “free decision of the couple” (Article 1,565, §2) and reinforces that either spouse may, should he or she so wish, add the other’s family name (Article 1,656, sole paragraph).
On the other hand, it is still possible to notice the “smell of old clothes” in the CC/02. This is the case, for example, of Article 1,600, which does not afford credibility to women’s words, stating that “the adultery of women, even if confessed, is not enough to deceive the legal presumption of paternity”.
In this evolutionary process, the Maria da Penha Law (Law No. 11,340/06) embodies one of the most valuable instruments for the protection of women. In general terms, the law typifies and defines domestic and family violence against women, expressly indicating the forms of aggression (physical, psychological, sexual, proprietary and moral). Moreover, it creates Specialised Courts for Domestic and Family Violence against Women, with civil and criminal jurisdiction, also setting out penalties for the aggressor and necessary protective measures.
Gender equality in civil procedure
Specifically in the realm of civil procedure, the central theme of this article, some reflections are also important.
d.1) Civil Procedure Codes of 1939 and 1973
Contaminated by the principles and values of the time, the CPC of 1939 emanated strong discriminatory weight.
Married women, for example, with few exceptions, could not appear in court without her husband’s permission (Article 82). Nor could she be named executor if, at the time of her spouse’s death, she was not “because of her fault, living with him” (Article 469, I).
With respect to the CPC/73, enacted in a very different context, the advances were significant, but not enough to dry out the constant discussions on gender inequality.
One of the most controversial articles was Article 100, item I (with wording amended by the Divorce Law), which set out the jurisdiction of women’s courts for lawsuits for the separation of spouses and their conversion into divorce, as well as for the annulment of marriage.
The doctrine was split with respect to the constitutionality of the rule, but in 2011, the Supreme Federal Court (STF) recognised that the infra-constitutional provision did not violate the constitutional principle of isonomy (RE 227,114/SP).
Another legal provision that reflected this non-isonomic treatment was Article 1,121, item IV, which set out “maintenance payments from the husband to the wife, if she does not have sufficient income to maintain herself” as a requirement for applications for consensual separation. The reverse situation (the wife’s maintenance payments to her husband) was not even considered.
We have finally arrived at CPC/15, a law painted with a constitutional varnish (Article 1) and equipped with a strong democratic weight.
Unlike the codes of 39 and 73, the legislator of CPC/15 did not use the word “woman”, not even once, which in itself already indicates a new axiological direction with regard to gender equality. The observation is relevant because, in the past, when the word “woman” was used by the legislator, it was almost always connected with some discriminatory fact/act.
In the chapter on divorce and consensual separation, the understanding remains that the obligation to pay maintenance is not a one-way street (from men to women), but “between the spouses” (Article 731, II), which makes total sense and reflects, furthermore, the reality of many Brazilian families.
In turn, regarding the venue with jurisdiction for “divorce, separation, annulment of marriage and recognition or dissolution of a stable union proceedings”, there has been a subtle change that should be examined in detail.
The venue with jurisdiction is no longer the woman’s domicile. There is now a sequential order. It will initially be the “domicile of the guardian of an incapacitated child”. However, if there is no incapacitated child, it will be the “the couple’s last domicile”. Finally, if neither party resides in the couple’s former domicile, the venue will be that of the “defendant’s domicile” (Article 53, I, a, b and c).
There is thus a repositioning of the normative focus, which previously focused on the implicit presumption of women’s incapacity/dependence and that now concerns – at least initially – the protection of the interests of an incapacitated child.
Thus, the idea of women’s vulnerability is abolished and the presumption that, at the end of their relationships, they are always the most economically disadvantaged.
d.3) The impacts of the Julia Matos Law on the CPC/15
In 2016, the Julia Matos Law (Law 13,363) inserted some provisions into the Statute for the Practice of Law (Law 8,906/94) and into the CPC/15.
With respect to the Statute for the Brazilian Bar Association (OAB), certain rights were guaranteed for pregnant lawyers, such as, for example, entry into courts without being subjected to metal detectors and x-ray machines, and the reservation of parking spaces in court venues (Article 7-A, I, a and b).
Pregnant and breastfeeding women and adoptive parents were also guaranteed preference in the order for oral support and hearings to be held. Specifically in the case of an adoptive lawyer or one who gives birth, the suspension of procedural terms was also assured when he or she is the sole legal representative in the case, provided there is written notification to the client (Article 7-A, III and IV).
However, in practice such provisions are not being fully respected.
Recently, a lawyer who had given birth less than a month before and sought the adjournment of a hearing had her request rejected. In the opinion of the labour judge, the lawyer could perfectly well find a substitute for the case, with the suspension of the procedural act not being justified. Subsequently, the Brazilian Bar Association in Rio de Janeiro State (OAB/RJ) filed a writ of mandamus, and an injunction was granted to suspend the hearing.
At the same time, it can be seen that some fractional bodies of the courts have not been ensuring that pregnant lawyers have preference in oral support, either due to lack of use of this prerogative by the pregnant women themselves or due to lack of awareness of the rule. In this context, the dissemination of this right for pregnant women must be maximised. A good measure could be the insertion of notices on the OAB and court websites, as well as in the trial sessions themselves.
With respect to the impacts of the Julia Matos Law on CPC/15, Article 313 was amended, which received two more items. Among the situations for suspending proceedings, suspension “for childbirth or for the granting of adoption, when the lawyer responsible for the case is the sole legal representative of the case” (item IX) was included; and “when the lawyer in charge of the case is the sole legal representative of the case and becomes a father” (item X).
In addition, two more paragraphs were included in Article 313, establishing that: a) in the event of item IX, the suspension period will be 30 (thirty) days (§6); and b) in the event of item X, the suspension period will be 8 (eight) days (§7).
Undoubtedly, the changes have been positive. It seems absolutely reasonable and consistent with the principle of the dignity of the human person to suspend proceedings at such a sublime and special moment in the parents’ lives.
The difference with respect to the suspension of proceedings (30 days for mother lawyers and 8 days for father lawyers) brings inconsistencies with it. This is because, regardless of any physiological issues (which, strictly speaking, do not even apply to the case of adoption), both have a duty of care for the child, and their rights and obligations are equal. It would therefore be appropriate to set equal terms.
In addition, the rule may cause prejudice in the situation of adoption only by a male lawyer, since in this case, the suspension of proceedings in which he acts will be for only 08 days, while in the case of an adoptive female lawyer, it will be 30 days.
Nevertheless, the rule is omissive with respect to the incidence of said terms in the event of provisional judicial custody for the purpose of adoption, which may lead to discussions on the possibility of an extensive interpretation.
d.4) Exemption from mediation/conciliation hearings in cases of violence against women
Another highly sensitive issue is the compulsory participation of women who are victims of domestic violence in mediation/conciliation hearings (whether in ordinary proceedings – Article 334, or in family lawsuits – Article 695).
Although the CPC/15 establishes that mediation/conciliation hearings are mandatory (Articles 334, heading, and 695, heading), observing only the situations of exemption from the procedural act (Article 334, §4, I and II), the rules cannot be construed literally.
As is well known, upon applying the legal system, “the judge will meet the social purposes and the requirements of the common good, safeguarding and promoting the dignity of the human person and observing proportionality, reasonableness, legality, publicity and efficiency” (Article 8).
In our opinion, when there is a protective measure afforded to a woman, we think that exempting her from attending the mediation/conciliation hearing should be automatic, with communication and a simple confirmation being enough. After all, it makes no sense to put the aggressor and victim face to face, exacerbating the issue already caused.
Equality of male and female judges
It has recently been reported that in Portugal a lawyer who defended someone accused of abusing his daughter requested the Court remove the Reporting Justice from the case and be replaced by a male judge. The justification: she was a woman and probably a mother, which would be sufficient to compromise the judge’s impartiality.
The above justification is terrible and disregards the fact that being more sensitive to conflict in being a woman and being a mother is not enough to break impartiality. The hypothesis encourages gender inequality that is so much combatted from the idea that the mere fact of being a woman and probably a mother would be enough to compromise the judge’s impartiality.
In fact, a hypothetical breach of neutrality would only be verifiable from the substantiation of her decisions, at which point it would be possible to ascertain, from a scientific point of view, a possible departure from the law with her baggage, world view and gender as background.
The act of judging is perhaps the most important procedural act within the entire context of the CPC. The controversy and doubts on the differences between judgments handed down by male and female judges were perpetuated in the reflections and with solid foundations, such as biological nature, past experiences and the specific and differentiated experiences of each gender.
Pre-understanding in the act of judging is inherent to gender, yet the nature of women, recognisably more loving, and consequently giving her a more loving assessment of the facts, affords women a more humble and more realistic eye, glimpsing special ways of looking at social relationships that are not always well perceived and evaluated.
This differentiated perception stems from the activities that women carry out in the family, because her mind is naturally awakened to particular peculiarities.
However, these differences never influence the formation of conviction supported in law, nor can they compromise impartiality and neutrality.
Although there are still serious disparities between men and women (pay, employment, on the political plane and in public office, etc.), a strong normative escalation in recent years, in favour of gender equality, can be noticed.
Specifically in the field of civil procedure, the advances have been significant, but we dare saying that reforms are useless if the spirits remain frozen. It takes a change of mind, a rereading of old dogmas, with the structuring vectors of the Democratic State governed by the rule of law being faced. The struggle for gender equality should not only be for women but for the whole community.
In short, much has already been advanced, but the road is still long, because there have been centuries of repression and discrimination. In any event, there is no way back and what comforts us is knowing that we are heading to the right direction.