POLYAMORY: RESPECT FOR THE FREEDOM TO LOVE OR BREAK THE MONOGAMOUS FAMILY MODEL?

• Autor(a) principal: Gonçalves, Helanne Barreto Varela
• Data de Publicação: 2015
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Brasileira de Direito Civil em Perspectiva
• Texto Completo: http://www.indexlaw.org/index.php/direitocivil/article/view/747
• topic: Polyamory, Human dignity, Family plurarity; Poliamor, Dignidade humana, Pluralidade familiar

This article aims to analyze the polyaffection union, commonly known as polyamory, in order to establish, in the light of its own characteristics, a comparison with other forms of family unit already recognized by Brazilian law. Therefore, the objective is to observe whether the practice may or may not hold constitutional dignity in the face of semantic opening of the concept of family, foreseen in the Constitution in a non-exhaustive list, more precisely  in  accordance  with  Article  226  of  the  CRF  /  88.  It  took  into  account  the requirements / elements necessary for defining the family unit already recognized as well as the principles that guide family law, as a special emphasis on the primacy of human dignity, the principle of affection, the objective good faith, protection trust, fidelity and monogamy. From  a  logical-deductive  approach,  we  identified  the  polyaffection  is  only  limited exclusively to the simple freedom to love or have multiple sex outside the relationship, or if, on the other hand, is part of a legal framework for the concept of family, supported by all its legal and evaluative protection, with greater emphasis on the rule of monogamy and fidelity. Guided by a new constitutional order, the family came to be conceived as the grouping formed by people united by ties of kinship and affection and focused on the pursuit of happiness, while unfolding of his personality. That said, at that view that family should be seen with the meeting of man and woman, exclusively through civil marriage, opens to the family concept due to common-law marriage (art. 226, paragraph 3, of CF / 88), for the single parent family (art. 226, paragraph 4, of CF / 88) and now more recently for the family due to same-sex union after recent judgment of the Supreme Court of the ADIN No. 4277 and No. 132 of ADPF . As for the latter, many were the arguments and principles invoked so that same-sex union would bear the legal validity that characterized the family entities hitherto existing, between them, human dignity, non-discrimination on grounds of the origin or sexual diversity the primacy of equality between family entities, the principle of non- taxatividade of family entities or family plurality and affection.