MENDES. A. L. A.; MENDES, André Luiz Andrade.
Résumé:
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.