Estudo acerca da (in) constitucionalidade do regime de separação obrigatória de bens para os maiores de setenta anos.

Abstract

With the enactment of the Federal Constitution of 1988, a model of the State was introduced in Brazil based on the dignity of the human person, on freedom and on the equality of citizens, principles that are of fundamental importance for the construction of a fair society without prejudice among its individuals. Since the Charter of 1988, the Family Law has undergone profound changes, since the constitutional text listed several norms and principles that made many of the provisions of the Civil Code of 1916 obsolete. The Civil Code of 2002 sought to reflect the new social and political context inserted in the country with the Constitution of 1988, however, some provisions of the current civil law diploma still have a backward bias, not in line with the current social conjecture of the country. An example of this is Article 1,641, II of the Brazilian Civil Diploma, a provision that imposes on the spouses who are over 70 years of age the regime of compulsory separation of assets, leaving no room for individuals to opt for a different regime. This legal imposition raises great controversies in the doctrinal and jurisprudential environment about a possible unconstitutionality of the said device, which would represent an affront to the constitutional principles of human dignity, isonomy and private autonomy. From this discussion, it is questioned whether the imposition of the regime of obligatory separation of goods by art. According to this approach, the present study had as a general objective to analyze the regime of compulsory separation of assets imposed on the elderly over 70 years of age. years by Article 1641 of the Civil Code in light of what prescribes the constitutional principles of human dignity, isonomy and private autonomy, thus verifying the compatibility between them. Methodological aspects were used as deductive method as method of approach, historical and interpretative methods as procedure and bibliographical and documentary review as the research technique that guided the present study.