Da inconstitucionalidade do Regime de Separação Obrigatória de Bens para pessoas maiores de setenta anos.

Abstract

This paper discusses the constitutionality of the mandatory regime of separation of property for people who contract marriage aged seventy years as the Civil Code provides in its art. 1641, II. To do so, we highlight the evolution of family law regarding marriage and property regimes, as well as the principles applied to these. Among the principles it stands out the free that ends up being exceptioned by the stipulation of the imposition of the article of the Civil Code. The imposition is justified by the legislature for its protective character who seeks to avoid marriage by patrimonial interest. However, this study defend the unconstitutionality of that rule , considering that turns out to be unreasonable and, especially, for offending the constitutional principles of human dignity and legal equality, also violating the freedom and autonomy of the will, assuming individuals older than seventy years are unable to freely choose property regime that will govern their marriage . Added to these arguments the fact that, compared to the current social reality and family , the interpretation of the Civil Code in the light of the Constitution taking into account their values and fundamental rights guaranteed to all, since these are the principles that should lead to realization of civil law. Intending to achieve the objectives outlined in this paper, the inductive method were used as a method of approach, the historical- evolutionary method, was used as a method of procedure and as a research technique, the theoretical method, through the literature review, in which it was used doctrines, legislation, scientific articles and jurisprudence as means to ground and sustaining the approach to the object of this study. Then, it was realized that family law should be analyzed under the light of the Constitution and legal institutions must be protected in order to prioritize the individual. Thus, the imposition of the mandatory regime of separation of property for people with more than seventy years proved to be unconstitutional, because it privileges the patrimonial guardianship at the expense of the protection of human dignity and autonomy of the will, even violating the principle of equality and constituting an intolerable discrimination.