São Paulo Court Allows Removal of Father’s Surname for Affective and Material Abandonment

RIO DE JANEIRO, BRAZIL – The principle of immutability of the name is not absolute under the Brazilian legal system. With this understanding, the 3rd Chamber of Public Law of the São Paulo Court of Justice authorized a woman to remove her father’s surname on the grounds of affective and material abandonment.

She sought the Court alleging that retaining the surname caused her distress and suffering and violated her constitutional rights to personality and dignity. The action was dismissed by the lower court, but the sentence was modified by the São Paulo Appellate Court (TJ-SP).

The rapporteur, appeals Judge Donegá Morandini, said the breach of the affective bond between father and daughter was confirmed. “The father himself, despite claiming he wishes his daughter well and wants a rapprochement, admits that he distanced himself from her in 2014 due to professional disagreements with the appellant’s maternal core, which confirms the factual outline set forth in the petition,” he said.

Morandini also noted a psychological assessment attached to the case records that attests to the daughter’s suffering and distress in retaining her paternal surname. Thus, he considered that excluding the surname, in this case, is a “significant measure”: “Exceptional modification of the name is admissible in order to ensure the protection of the appellant’s own personality, in accordance with Article 16 of the Civil Code.”

Also according to the rapporteur, the exclusion of the surname, as far as records are concerned, does not result in any damage to rights claimed by third parties, since there are no records of civil or criminal actions in the name of the plaintiff, nor entries of complaints recorded in her place of residence. The decision was unanimous.

Source: Conjur