A(s) família(s) sob a ótica da afetividade: uma análise da personalização das relações familiares.

Abstract

The main structure of society is the family entity, which is the study object of legal science. In this way, family shows itself as a historical and not static structure, since it accompanies each era. Family law has its pillars built from the Roman Law, passing through Canon Law and following with the legislative variables. The Civil Code of 2002 (law 10.406/02) represented a rupture of paradigms regarding Family Law, although it has still preserved a patriarchal bias in some normative passages. Only with Federal Constitution of 1988 (CF/88), family bonds were based on the principles’ theory, immersed in the subjectivism of human relations. This is called Neo-constitutionalism, which allowed the CF/88 to be the protagonist of legal rules. From this perspective, question about the constructive course of affectivity in Brazilian law arose. Much is discussed whether or not affectivity is a legal principle. The homeland jurisprudence is, for the most part, recognizing the legal value of affectivity, when it does not consider it a principle. Doctrine diverges in this sense, and most of doctrinators opted to provide argumentative support in favor of this juridical recognition. The discussion of the present work is centered on this sense. The purpose of this theme was to analyze the evolution of the Brazilian family until it reaches what scholars call the depatrimonialization of family relationships, which is directly linked to the postmodern phenomenon of repersonalization. In order to do so, it was necessary to consolidate the normative force of constitutional principles, especially the principle of the dignity of the human person. From this macro-principle, all the specific principles of family ties have emerged. Thus, it was possible to demonstrate how the contemporary family space propitiates the personal fulfillment of each human being, as it allowed family plurality. For the preparation of the present study we will use the deductive, historical and dialectical methods. The procedure will be based on bibliographic research, examination of articles, books, periodicals, monographic works and online consultations. Without exhausting the theme, this monograph aimed to clarify the theme, in order to bring the affective family to the center of Family Law, placing it on a par with the biological family.