THE UNCONSTITUTIONALITY OF THE REGIME OF MANDATORY SEPARATION OF PROPERTY FOR MARRIED PEOPLE OVER 70 YEARS OF AGE

Abstract

Within the scope of Family Law, the marriage relationship is of paramount importance, given that it is through this relationship that permeates the entire family legal system. Regarding marriage, art. 1,641 of the Civil Code, which in its section II, establishes that, in marriages in which one of the bride and groom or both are over 70 years of age, the mandatory separation of property regime must be applied. Based on this, this study aimed to analyze the constitutionality of this normative article. To this end, we sought to present the doctrinal and jurisprudential positions on the topic. In methodology, it was a bibliographical review, based on selected scientific studies and jurisprudence, whose time frame was between 2018 and 2023 found in databases such as Scielo and Google Scholar. The results showed that this section of article 1,641 of the 2002 Civil Code is unconstitutional, as it is understood to violate the principles of human dignity, equality and freedom. Advanced age should not be an impediment to freedom of choice, especially in relation to marriage and its effects on property.