A (IN)COMPATIBILIDADE DO ESTADO CIVIL DE DIVORCIADO COM A CONSTITUIÇÃO FEDERAL DE 1988: UM ESTUDO SOB A ÓTICA DOS PRINCÍPIOS DA DIGNIDADE DA PESSOA HUMANA E DA PROPORCIONALIDADE

Abstract

Over the last few years, in Brazil, it has been possible to verify the occurrence of a true constitutionalization of Civil Law, a movement that takes into account the interpretation and application of this legal area in accordance with values extracted from the Federal Constitution of 1988, such as the principle of the dignity of the human person and the fundamental rights, which promote and enforce it. As a result of this trend, which is very relevant for a Democratic State of Law, several changes related to the subject of divorce have been happening, making it much more humanized and facilitated, which prioritized some fundamental rights, such as autonomy and psychic integrity. However, when divorced, the individual will carry with him forever (or until he gets married again) the label of divorced. In view of this, the present work sought to analyze possible consequences of the existence of the marital status of divorced for those who carry it, reflecting on whether such effects would be in line with the constitutional precept of protection of the dignity of the human person. In this way, it was noticed that the divorced marital status violates certain fundamental rights and that, therefore, it is not consistent with the principle of human dignity. Moreover, considering that fundamental rights are not absolute, and can be relativized depending on the context, it was questioned, in view of the constitutional principle of proportionality, whether the existence of the marital status of divorced could be maintained, reaching a negative understanding. Thus, it was concluded that the divorced marital status is incompatible with the 1988 Magna Carta and that its presence in the national legal system must be rethought, in order to support relevant legislative changes. This research is descriptive and follows the deductive method, based on a qualitative analysis of data extracted from documental and bibliographic review of other academic works, as well as materials found on the internet, news, legislation and books.