A busca pela solução pacífica de controvérsias no direito das famílias: uma análise constitucional do código de processo civil de 2015 a partir da teoria dos deveres fundamentais

Abstract

The debate about the theory of fundamental duties is still very early in Brazilian law, so that the present work, combining this perspective with the questions that unfold from the constitutional reading of the civil process idealized by the Code of Civil Procedure of 2015, aims to understand the existence of a fundamental duty of the parents who are in dispute between themselves, to seek, as a possibility to resolve their disputes, alternative and consensual means to the jurisdiction or, where there is a jurisdictionalisation of the litigation, to seek consensual means within the lide, as a form of decision of the aforementioned problems, especially in the part of the litigation concerning the rights of their children who are still children, who may suffer, directly or indirectly, the impacts of a litigious relationship between their parents. Thus, from a multipledialectical methodological perspective, in the first part of the work we sought to understand the theory of fundamental duties, preparing, from then on, its epistemological approach in relation to the new civil process code of 2015, from the understanding of the fundamental duty of the parties in the procedural relationship to contribute to the administration of justice. Following this, it was objectified, through the selection of normative devices of this novel procedural institute, to verify the inherent duties of the parties to a lawsuit, in particular, these duties in relation to the children involved in the proceedings, among which, the duty to seek solutions of the controversies, inherent in the law of families, from an approximation with the theory of fundamental duties developed in the first part of the work. Finally, in the third and final part, the objective was to analyze the existence of a fundamental duty of the parents, who are in dispute among themselves, to seek a consensual solution as a more adequate means to solve the issues that are also inherent in the rights of their children.