The Federal Supreme Court will decide the validity of article 1,641, item II, of the Civil Code (CC), which determines that the regime of separation of property is mandatory for the spouse or partner over 70 years of age.
The norm is of dubious constitutionality, as it removed their autonomy from the spouses or partners, violating the Federal Constitution’s provisions, especially the dignity of the human person (art. 1, III) and the principle of equality (art. 5, I).
It cannot be admitted that a person over 70 years of age does not have the capacity and autonomy to decide which regime to apply on the occasion of their nuptials or the establishment of their stable union, under penalty of violating sensitive precepts of the Constitution, in particular that of dignity. of the human person, a fundamental foundation of the Brazilian Republic.
The extraordinary appeal was submitted to the general repercussion regime, in which Justice Luís Roberto Barroso declared that “the controversy about the validity of article 1641, II, of CC/02 has a constitutional character”. The article in question could never restrict the autonomy of the will in order to protect the person of the elderly or their heirs.
It is necessary to clarify that the rule also violated art. 3, IV, of the Constitution, which prescribes that it is the fundamental objective of the Federative Republic of Brazil to promote the good of all, without prejudice of origin, race, sex, color, age and any other forms of discrimination.
There is no temporal or circumstantial limit for the elderly to be able, in their will, to dispose of the available part of their assets. Thus, if he can test whoever wants 50% of his assets, it would be unreasonable for the infraconstitutional law to obligatorily impose the separation regime only and solely on the basis of age. Now, we are faced with an invalidated, retrograde norm, without any foundation in the Charter — which is the plan of validity of the entire national legislative framework.
Only half of the inheritance assets belong to the heirs, as prescribed by art. 1,846 of the CC. Thus, if there is only one heir of the person over 70 years of age, the spouse or partner would never advance in the legitimate, which is protected by the aforementioned rule. As can be seen, even art. 1641, II, has systemic compatibility with the Civil Code.
This article, we can say, is a dinosaur within the Brazilian legislative framework. By imposing the mandatory separation regime on people over 70 years of age, art. 1641, II, violated the Federal Constitution, turning it into mere paper with ink. In this regard, the observation of Justice Luís Roberto Barroso was happy when he declared: “It is argued that, by absolutely assuming the incapacity of people over 70 years of age to decide on the patrimonial regime applicable to family unions they contract, the rule interferes with the autonomy of these individuals, which is an aspect that integrates the minimum content of human dignity (art. 1, III, of the Constitution).
Taking into account the increase in life expectancy of the population in recent decades, the application of this rule would potentially prevent decision-making by individuals fully aware of its implications. Thus, the provisions that provide for the prohibition of discrimination against the elderly, the protection of stable unions and the duty to support the elderly would be in tension (articles 3, IV, 226, § 3, and 230 of the Constitution).
In view of these aspects, it is concluded that art. 1641, II, of the Civil Code, is unconstitutional and invalid, as it offends arts. 1, III, 3, IV, 5, I, X, LIV, and 226, § 3, 230 of the CF.
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