A inconstitucionalidade da imposição do regime de separação legal de bens no casamento de pessoas maiores de 70 anos.

Abstract

The family is the basis for the development of society. Social evolution has brought forward the ideals of dignity and equality by treating all those who belong to it equally and with respect, since there is no longer the hierarchy within the family, the man and the woman are equally responsible for the home that constituted and for the children they have. These have the same rights to be natural, adoptive or affective. Federal Constitution of 1988 is well prepared in their articles to the defense of these principles, for it shows with great concern for the health of the family, especially for the affection that form, that is, the welfare of its members. The Basic Law also speaks of the various forms of family building. In all types of marriage, is the complete fusion of the couple, this involves affection, love, companionship and also the assets of each partner. It is in the Civil Code of 2002 we can analyze the rules for schemes of goods, so the property regime in the unions, is a natural consequence of this complete union of two individuals to family background. Although there is currently a choice of property regime, previously, in the past, you could not make such a choice of the system, because society was marked by hierarchy and with that, the man always had rights over the assets of his wife. Just as in marriage, common law marriage has the opportunity to choose the type of regime to be applied to the couple, as well as in the case of the couple choose not expressly applies the system of partial property. The form in which assets will be administered will be chosen by the couple, freely and spontaneously, however, the law brings some cases that shall be adopted the system of legal separation of goods. It is the CC / 02 determining the cases required to choose the system of legal separation of property, and there is concern this be mandatory legal requirement for the union of those older than 70 years because it is a setback to the principles of dignity and equality, defended by the highest law, meeting with the ideal of freedom exposed by law. This imposition is clearly being irrational, not taking into account the due respect that should be given to the elderly. Our study shows interested in real change these imposing standards, as unconstitutional because it is below the Basic Law. And as contrary to it, there is the need to conduct of judicial review to which such a rule to be reconsidered, because only then can withdraw from among the Brazilian standards such an affront to the constitutional principles. The family and its forms of marriage, and all those who are part of it deserve to be respected, whether child, young, adult or elderly. The law brings their rights and duties and must be respected, because only then that we have a society with secure base.