Separação obrigatória de bens para nubentes maiores de setenta anos: uma análise normativa a luz dos princípios e direitos fundamentais, previstos na Constituição Federal de 1988.

Abstract

With the advent of the Federal Constitution of 1988, the Democratic State of Law was established, founded on a guarantor stance based on the dignity of the human person, freedom and equality between citizens, principles that are of fundamental importance for the construction of a fair society without prejudice among its individuals. The new order constitutional brought about transformations in all Brazilian legislation. Such innovations reflected in the Civil Code of 2002, however, Article 1,641, II, of the aforementioned diploma, by imposing the obligation of the property separation regime for spouses over the age of seventy has provoked intense discussions in the doctrinal and jurisprudential spheres, questioning the constitutionality of such a norm. On the one hand, the rule would be unconstitutional because it violates the principle of equality, of the dignity of the human person, also violating the autonomy individual of the elderly person. On the other hand, the constitutionality of the device is defended, in compliance with the protectionist nature regarding the rights and interests of septuagenarians. In view of the controversy, the present study envisioned an analysis of the aforementioned standard under the constitutional perspective. To this end, the deductive method was used, starting from a general approach to the specific theme outlined, also using the procedure bibliographic and documentary as a technique to guide this research.