Civil Responsibility and Marital Debt: A Brief Analysis of Portuguese and Brazilian Laws on Immaterial Damage Through Breaches in Sexual Duty

Abstract

Since sexual intercourse is on the list of marital duties, current research investigates whether its violation is an illicit civil act liable of juridical appreciation, especially within the context of civil responsibility, and of consequent investigation for damage and the amount of liability to the injured partner. The issue refers to the analysis of four situations derived from breaches of sexual rights and the eventual possibility of the injured partner receiving civil reparation: a) civil responsibility of the partner by the omission of sexual rights; b) the partner´s civil responsibility through marital unfaithfulness; c) civil responsibility of third party through the partner´s unfaithfulness; d) civil responsibility of third party for marital partner´s sexual incapacity. Current investigation does not comprise the quantification of civil indemnity owing to the end of the marriage contract or lack of love, analyzed as affective abandonment, but failure of sexual right, as a break in the expected full life communion in marriage. An exploratory, descriptive and analytic methodology was employed for the doctrinal, legislative and jurisprudential appreciation of Portuguese and Brazilian law. Research was divided into three parts. A current analysis of the Western family was provided, especially the Brazilian and Portuguese family, underscoring three main topics: plurality, de-statization and re-personalization of the family. Although Portuguese and Brazilian law is foregrounded on Roman law and even posterior to the evolution of the juridical and family perception, it still contemplates provisions on marital rights and duties. A detailed analysis is further endeavored for each marital right according to legal and doctrinarian concepts, especially the sexual right. The non-compliance with the sexual right is investigated as cause for civil accountability. The latter is achieved by the identification of the presuppositions of civil responsibility and in the light of Portuguese and Brazilian legislation, doctrine and jurisprudence.