A (in)constitucionalidade da separação obrigatória de bens para maiores de 70 anos de idade

Abstract

This work, which was put together by using the deductive method and through a hermeneutic approach, is centered on the unconstitutionality of the obligatoriness of the separate assets’ regime for people over the age of 70. The 2002 Civil Code brought great innovations to the Brazilian legal order, however, some subjects remained being treated in a conservative wat by the legislators. So understands a great part of the doctrine when it comes to the item II of the article 1.641 of the Civil Code, which brings the legal imposition of the separate assets’ regime for people over the age of 70, for they view it as opposing to the rules stablished in the Federal Constitution of 1988, as well as in the Elderly People Statute. The reasoning behind the aforementioned article was the protection of the elderly, who, through the lenses of the ordinary legislator, are fragile and vulnerable people that need this legal protection to their patrimony. However, this obligatoriness does not appear to agree with the precepts stablished in the Constitution, for instance, liberty and equality among all, with no regards to their age. In this context, this works is justified by the necessity to investigate the constitutionality of this legal device, because, through the lenses of the Federal Constitution, as well as of article of the Civil Code, the elderly possesses complete legal capacity to engage in civil life acts, which includes celebrating matrimonies and contracts.