Os reflexos da função social da propriedade na análise do instituto da Usucapião Familiar (artigo 1240-A do Código Civil de 2002)

Abstract

One of the controversial points within the Law is the acquisitive prescription, which is one of the original sources of acquisition. The legal doctrine itself divides the necessary requirements as personal, formal and requirements in rem, and there are different known forms of acquisitive prescription. The aim of this article, however, is the family form of acquisitive prescription, which is considered as a form that expands within the scopes of Rights in Rem and Family Law, being connected to the social function of the property, which is regulated by the Constitution. The general focus is to suggest a better knowledge of the content of the regulation (1.240-A of the Civil Code of 2002), with the purpose of demonstrating that the legislator, in view of the social function of the property, decided, through the mentioned article, to offer a guarantee to the spouse or partner that remains in the asset, the right of acquiring part of the property pertaining to the other. It is believed that this would be a way of legitimizing the state of ownership, influenced by the situation of the family, given the uncertainty of the partner who remained at home. Therefore, it is possibile to say that one of the alternatives to the spouse or partner that remains at home would be to seek help from the Judiciary to settle the situation through this form of acquisitive prescription. The methodology used was based on articles, books, doctrines and laws concerning this subject.