LEGAL REGIME OF ASSETS IN MARRIAGE AND IN STABLE UNION

historical adjustment and removal of ethrism as cause of discrimination

Abstract

Since the revoked Civil Code of 1916, there has been much discussion regarding the provision contained in its article 258, section I, which established that the regime of separation of property in the marriage of a man over sixty years of age and a woman over fifty years of age was mandatory. years. With the advent of the Civil Code of 2002, this prediction was repeated, this time equating men and women in terms of age and establishing the age of sixty years for the obligation of such a regime. Later, in 2010, Law No. 12,344 came into effect, which changed the age to seventy years. However, this prediction continued to be subject to criticism, in particular, for establishing a presumption of fictitious incapacity, violating, as its critics said, the Federal Constitution, for being discriminatory, in addition to violating the principle of freedom and dignity of the person. human. On the other hand, when supporting the soundness of such a prediction, its defenders said that such a rule collimated the protection of the right to property and inheritance, in situations of vulnerability. Given these facts, the STF ruled on Topic No. 1236, Leading Case: ARE 1309642, establishing the thesis: “In marriages and stable unions involving a person over 70 years of age, the separation of property regime provided for in art. 1,641, II, of the Civil Code, can be removed by express manifestation of the will of the parties, through a public deed". Thus, using the dialectical method, theoretical references, legislation, bibliographic research, and resources will be used. Thus, objectively provide a historical overview of the topic, a reading and re-reading of the legal system after the Supreme Court's decision, its consequences and the resulting impacts on the legal system, as well as presenting possible solutions and interpretations for recategorizing certain institutes.