A (in)constitucionalidade cometida pelo Estado na imposição do regime de separação total de bens às pessoas maiores de setenta anos

• Autor(a) principal: Savi, Cliceu
• Data de Publicação: 2019
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/7576
• topic: Inconstitucionalidade; Imposição estatal; Regime de separação obrigatória de bens; Capacidade civil

The herein Course Conclusion Paper has as its title the Unconstitutionality committed by the Estate in imposing the mandatory property separation act to people over 70 years of age. The Item II of the Article 1.641 of the Civil Code foresees the prohibition of people over 70 years of age to choose property regimen of which they desire to constitute their matrimony. The purpose of this monograph is to demonstrate that such Article, when created, violated the 5th Article of the Magna Carta, where the consecrated constitutional rights of the human person are inserted, the freedom and equality. It imposes, also, a discriminatory limitation, based only in the age of future spouses, violating, also the 3rd Article of the Federal Constitution. It is known that the homeland legal order bases itself in the Constitution, and no subconstitutional rule can bring contrary rules to what is written in its text, under penalty of being declared null. It was noticed, during research, that legal doctrinaires such as Dias, Madaleno and Rizzardo, among others, disagree that the legal device of the item under analysis is contrary to the constitutional text, because it restricted these rights to the younger elders and, pursuant to their clarification of these, it could not be the advanced age group the civil capacity limiter. Based in the deductive method, we consist that there was really an evident rights violation and, mainly, of the illustrious guiding principles of the Constitution. We used the explanatory research method, where, by research in bibliographic references, we explored mainly the doctrines, legislations and jurisprudences.