THE UNCONSTITUTIONALITY OF THE IMPOSITION OF THE MANDATORY SEPARATION OF PROPERTY REGIME FOR THOSE OVER 70 YEARS OF AGE

Abstract

As a rule, the engaged couple are free to choose the property regime that best suits them or, even, they can create their own, within the legal limits, through a prenuptial agreement. However, there are cases in which the wishes of the engaged couple are not respected. Among these cases, art. 1,641, item II of the Brazilian Civil Code, amended by Law 12,344 of December 9, 2010, determines that those over seventy years of age, regardless of gender, are obliged to a regime of absolute separation of property when they enter into marriage. In view of this scenario, the purpose of this study was to discuss the unconstitutionality of imposing a regime of mandatory separation of property for those over 70 years of age. It was based on a bibliographic review, based on scientific articles, books, periodicals and current legislation on the respective subject. Data collection will be carried out using databases such as Scielo, Google Scholar, among others, from 2018 to 2024. The results recently determined that the mandatory regime of separation of assets in marriages and stable unions involving people over 70 years of age can be changed at the will of the parties. The Plenary unanimously understood that maintaining the mandatory separation of assets, provided for in the Civil Code, disrespects the right of self-determination of elderly people.