THE (IN)CONSTITUTIONALITY OF THE MANDATORY SEPARATION PROPERTY REGIME FOR OVER 70 YEARS OLD

Abstract

This article sought deals with article 1641 exposed in the Civil Code of 2002, item II, where it mentions that the elderly over the age of 70 will be obliged to follow the regime of separation of property. This provision contradicts the norms of the Brazilian legal system, especially the law that establishes it, as it violates several constitutional precepts and principles when it presumes an elderly person's supposed inability to dispose of their assets in marriage, restricting their autonomy of will, making them relatively incapable of civil life actions. Therefore, the objective is to analyze the (in) constitutionality of article 1641, which obliges the elderly over 70 years to adopt the regime of separation of property. In this sense, the legislator, when imposing this obligation, did not specify such a restriction, disregarding constitutional rights such as equality, freedom, autonomy of will and dignity, under the absolute presumption of total incapacity due to age. The method used in the research was bibliographical with an exploratory nature, using theses, monographs and legislation applicable to the subject, with a deductive approach by starting from general premises through a structuralist procedure that allowed to search for information through the elaboration of hypotheses related to the problem. Finally, the expected results about unconstitutionality, which the imposition is discrepant due to issues of capacity, which only ceases if the person is affected by some type of disability that removes their aptitude and lucidity.