MITIGATION OF THE MANDATORY SEPARATION OF PROPERTY REGIME: AN ANALYSIS OF THE STF'S DECISION ON TOPIC 1236 AS A MILESTONE IN THE PROTECTION OF THE INDIVIDUAL FREEDOMS OF SPOUSES OVER 70 YEARS OF AGE

Abstract

Within the scope of Family Law, the matrimonial relationship is still a sphere of great importance, given the special legislative focus on governing marriage, its mode of celebration, its effects, and its dissolution. With regard to marriage, article 1,641 of the Civil Code (CC) states in its item II that, in marriages in which one or both of the spouses is over 70 years of age, the application of the total separation of property regime is mandatory. From this perspective, the objective of this study is to seek to understand the decision of the Federal Supreme Court (STF) in the judgment of theme 1236, its impact on the protection of the individual freedoms of the spouses over 70 years of age, what are its grounds and their reasons for deciding. To this end, the present research, which has an exploratory and documentary character, with jurisprudential analysis, used the bibliographic and documentary methodology to study the theme, through articles and books related to the theme, as well as the decision, from a qualitative approach to the object, using the deductive method to analyze the results. In the results found after deep research, the negative impact of item II of article 1,641 of the Civil Code (CC) on the individual freedoms of septuagenarians was evidenced, as it directly hurts the principles of human dignity, equality and freedom. Advanced age cannot be viewed or interpreted as an impediment to freedom of choice, especially when it comes to marriage and its patrimonial effects. Therefore, it is concluded that the STF's decision has a positive impact on the protection of the individual freedoms of the spouses over 70 years of age, representing a crucial milestone in the protection of the fundamental rights of the elderly, as it mitigates such imposition, which previously only hurt the dignity of these people, annulling their decision-making power by the other regimes, affecting their autonomy, presuming a relative incapacity of fully capable citizens,  and now it safeguards the right to choose and the private autonomy of such people, affirming their full civil capacity.