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Although Law No. 13.811/2019 expressly prohibits the marriage of those under 16, Article 1.551 of the Civil Code remains in force, allowing exceptions in cases of pregnancy and revealing a serious omission by the National Congress, alerts lawyer Erick Labanca in an article on the portal Migalhas.
Child Marriage and Legislative Omission That Perpetuates a Contradiction in the Civil Code
The so-called child marriage, although fought against by modern legislation and social movements, is still allowed as an exception in Brazilian law. The loophole, contained in Article 1.551 of the Civil Code, permits marriage for those under 16 in cases of pregnancy, even after the approval of Law No. 13.811/2019, which should have completely eliminated this possibility.
The analysis is from law student Erick Labanca, in an article published on the portal Migalhas, where he points out a serious incoherence between the current legal provisions.
According to the author, this contradiction represents an unacceptable omission by the National Congress, which failed to expressly repeal the article in question, keeping alive a norm incompatible with the Statute of the Child and Adolescent (ECA) and with the constitutional principles of full protection for childhood.
The Contradiction Between Articles 1.520 and 1.551 of the Civil Code
Law No. 13.811/2019 amended Article 1.520 of the Civil Code, which now reads:
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“Art. 1.520. Marriage shall not be permitted in any case for those who have not reached the age of marriage, as provided in Article 1.517 of this Code.”
This change, according to Labanca, explicitly prohibits marriage for those under 16, establishing a non-negotiable minimum age for civil union.
However, Article 1.551 of the same Civil Code remained unchanged, maintaining the provision that “marriage resulting from pregnancy shall not be annulled due to age”.
This overlap creates a legal antinomy, that is, a direct conflict between rules of the same hierarchy.
Labanca cites the Introduction to the Norms of Brazilian Law (Decree-Law No. 4.657/1942), which states in its Article 2, §1, that the later law revokes the earlier one when both are incompatible. Thus, according to the general theory of law (BOBBIO, General Theory of Law, 2010), the more recent rule should prevail, which would imply a tacit repeal of Article 1.551 by the new Article 1.520.
Criminal Law and Child Protection: The Rape of the Vulnerable as a Paradigm
Another crucial point raised in the article is the criminal nature of relationships with minors under 14.
According to Súmula 593 of the Superior Court of Justice (STJ), the consent of the minor victim under 14 is irrelevant to disregard the configuration of the crime of rape of the vulnerable, even if there is a romantic relationship or pregnancy.
“The crime of rape of the vulnerable is established with sexual intercourse or the practice of a lewd act with a minor under 14, and any consent from the victim for the act, their previous sexual experience, or existence of a romantic relationship with the agent is irrelevant.”
In this sense, the author highlights a decision by the São Paulo Court of Justice (TJ/SP), which denied the marriage request between a pregnant 15-year-old girl and her fiancé.
The judge Vito Guglielmi, the rapporteur of the appeal, argued that “the best interest of the adolescent herself would never recommend marriage”, emphasizing that the legal age for marriage in Brazil is 16, according to Article 1.517 of the Civil Code.
An Outdated Provision That Challenges the Rule of Law
For Erick Labanca, maintaining Article 1.551 of the Civil Code, in light of the new wording of Article 1.520, violates the principle of the dignity of the human person and the social function of the family.
According to him, the provision reflects an anachronistic view incompatible with the social and legal advancements achieved in recent decades, especially regarding the rights of children and adolescents.
“The National Congress forgot to repeal Article 1.551, allowing an unconstitutional exception to continue existing in the legal system. It is now up to the STF to recognize this antinomy and declare the norm unconstitutional,” concludes the author.
The information was originally published on the portal Migalhas and is based on an opinion article by Erick Labanca, titled “Did Law No. 13.811/2019 Tacitly Revoke the ‘Child Marriage’ of Article 1.551 of the Civil Code?”, also available in Revista Jus Navigandi.
And you, do you believe that the persistence of loopholes allowing child marriage is merely a legislative oversight or does it reveal how much Brazil still resists fully ensuring the rights of children and adolescents?
Even in the 21st Century, Child Marriage Is Still Legal in Several U.S. States, Where Loopholes in Laws Allow Unions Between Minors — Sometimes Without Minimum Age, With Parental or Judicial Consent.
Qual estado sério proíbe o casamento e deixa livre para transar? Se pode transar pode casar. Código penal libera para relações sexuais Aparti dos 14 anos.
Precisa proibir o namoro para menores de 16 anos também!
é óbvio, se for menor de 16, estiver grávida, entra em outra lei, relação sexual com menores.
Não tem lei que proibe sexo com menores a parti dos 14. Isso é coisa da sua cabeça. O que não pode é **** (sexo pago).