DA INCONSTITUCIONALIDADE DO INCISO II, ART. 1.641 DO CÓDIGO CIVIL DE 2002

Abstract

This study analyzes the constitutionality of item II, art. 1.641 of the 2002 Civil Code, which establishes the mandatory choice of the separation of property regime in the marriage of people over seventy years old. It will be presented the general rules that codify matrimonial regimes, the principles and related obligations, as well as precepts related to the prenuptial agreement. In addition, the different doctrinal positions that deals with the matter will be presented, including the validity of Precedent 377 of the Federal Supreme Court and its effects on the mandatory separation regime. Furthermore, it will display the relevance of advanced age as a limiting factor for acts of civil life, especially regarding to the mandatory regime of separation of property, transmitting important concepts related to autonomy, aging and the personality rights of the elderly person, received and guaranteed by the Federal Constitution of 1988. In this context, it is demonstrated that the maintenance of the aforementioned norm acquires a discriminatory character, limiting the elderly’s autonomy and private capacity, while restricting its freedom and equality before society, violating constitutional principles. Regarding the nature of the study, applied research was carried out, with a descriptive-exploratory objective, and a qualitative approach, using the dialectical method and bibliographic and documentary sources to corroborate the theses presented.