A inconstitucionalidade do regime da separação obrigatória de bens aos nubentes maiores de 70 anos

Abstract

Article 1641, item II of the Civil Code of 2002, establishes that, in the case of a marriage in which one of the spouses or both are over the age of 70, the regime of mandatory separation of property is mandatory. In the present work, the objective of analyzing whether the aforementioned legal provision is consistent with the Constitutional text is demonstrated, since, if one observes the existing divergence in the doctrine involving the norm discussed and the constitutional principles of the dignity of the human person, equality and freedom, as well as principles of family law and property regimes. In addition, it deals with issues of civil capacity, insofar as the norm generates a form of forced incapacitation due to age. In this way, a historical study of the rights of the elderly was carried out, bringing understandings about the Statute of the Elderly, as well as bringing definitions of the constitutional principles applicable to family law, entering the specific point that deals with the Unconstitutionality of the Regime of the Mandatory Separation of Assets for spouses over 70 (seventy) years of age. Finally, the deductive method and bibliographical research will be used, analyzing jurisprudence, doctrines and others