Imposição do regime de separação de bens aos septuagenários: uma afronta à igualdade, à dignidade humana e aos direitos da personalidade

Abstract

This work lends itself to hit against the normative described in Article 1641 – section II – of present Civil Code. The normative overflows unconstitutionality, injuring several constitutional guidelines and being materially inconsistent with the most important concept it rises: Human life appreciation. The normative brings direct affront to constitutional equality, human dignity and personality rights because it is both discriminatory and profanatory of human dignity, whether regarding to a positive or negative efficacy and restricting of free personality development. Through historical, interpretive and critical approach, we tried to reconstruct the historical frame of reference where the norm originated, as well as provide the context in which it falls today, clearly showing that society at current degree of maturity no longer admits axiological subversion presented at Liberalism period, whose legal system focus was the predominant property guardianship against human being – this merely considered as “fit to exercise rights and assume obligations, peculiarly in property relations”. The post-war scenario was crucial to establish people at the center of attention. As will be shown, the world started to recognize the human being, giving him the dignity inherent to the person, which can not be designated or eliminated and should be recognized and guaranteed by both the state and by the individuals themselves in interpersonal relations. And we go even further, will be widely advocated a person's right to the free personality development, which is clearly present in Brazilian legal system, as it is an outspread of such notorious human dignity. As final, will be possible to analyze that the Civil Code article norm 1.641, section II, when blast the septuagenarian autonomy regarding the property regime choice that will stand during the process, hurts its dignity, delineate an obstacle to free development as a person and also imposing unreasonable and unjustified discrimination, such legal provision should be excised from the Brazilian legal system.