The (un)constitutionality of the regime of compulsory separation of property for those over 70 (seventy) years of age

Abstract

This study intends to examine the legitimacy of article 1.641, II, of the Civil Code 2002, which determines the regime of compulsory separation of property for people over the age of 70 years old who wish to get married, based on the principles established in the Federal Constitution of 1988, with the aim of determining the constitutionality or unconstitutionality of the rule in question. In order to do so, initially, this paper discusses the phenomenon of the constitutionalization of the civil law, emphasizing the changes noted in the definition of family as a result of this contemporary experience. It then explores the regime of legal separation of property and the limited hypotheses contained in the article in question, with emphasis on the situation surrounding the 70-year-old partner, as well as the heated debates that have arisen in the academic field, seeking to evaluate its compatibility with constitutional values. In addition, it highlights the main jurisprudential debate on the issue, in the form of Supreme Court Precedent 377 and, most recently, the establishment of Theme 1.236. Lastly, the subject is discussed in relation to the institute of civil capacity.  This essay was based on a deductive methodology, with a descriptive purpose and a bibliographic procedure to substantiate the analysis, which has concluded that the article is unconstitutional and therefore must be removed.