O dever de indenizar em razão de infidelidade conjugal: A responsabilidade civil pelo descumprimento dos deveres matrimoniais.

Abstract

The scope of this scientific research is to analyze the possibility of being sentenced to indemnity for off-balance sheet damage suffered by a betrayed spouse during the duration of the marriage. The treatment given to family diversity in Brazil before and after the promulgation of the Federal Constitution was examined, as well as the legislation that granted increasingly broader and less sexist rights in family relationships. The guiding principles of Family Law, derived from the Federal Constitution or even derived from the joint exegesis of other basic principles of Family Law, were detailed to demonstrate the compass between the thesis and the principle base of the Brazilian legal system. Care was taken to analyze, interpret and extract the main converging concepts in the various doctrines on the concept of marriage, since the current norms are silent on doing so. We analyzed the doctrinal currents about the legal nature of marriage, and showed which is the majority current, of outstanding importance and which demonstrated that marriage is a special legal business of family law. The matrimonial duties set out in rol numerus clausus in the 2002 Civil Code were examined, and what is the scope, reflections and effects of these duties in the legal world. In the course of the work, it was demonstrated that the marital duties are not only the text of the law, but are mandatory observance. The possibility of the occurrence of an indemnifiable unlawful act inserted in a marital relationship was demonstrated, as well as the civil liability applied to the subjectivity of family law. The controversy that plagued this research was the controversy in the courts, and even the doctrinal one, on the possibility that the betrayal is an illicit act with the potential to harm the betrayed spouse's intimate, subjective and social well-being. It was shown that there are already judgments in Superior Courts that granted a claim for compensation for moral damages due to vexatious treason, or even in case that adultery results in children that the parent did not know were his own. To achieve the objectives, the deductive method was used, with bibliographic and virtual research technique, having as primary sources: Brazilian constitutions, laws, constitutional amendments, CNJ statements, jurisprudence and texts that deal with the proposed theme.