A inconstitucionalidade do regime da separação obrigatória de bens e o seu conflito com o princípio da autonomia privada

Abstract

In this research, carried out in the field of Law, the theme of the unconstitutionality of the mandatory separation of assets regime and its confrontation with the principle of private autonomy in marital and stable union relationships was explored. The general objective was to analyze the specificities of this regime and its implications, considering the Brazilian legal and doctrinal context. The guiding question that directed the investigation was: "What is the legislation and the understandings of the courts regarding the mandatory separation of assets regime, its impositions, specifications and its conflict with the free exercise of private autonomy by the parties at the time of celebrating the marriage and/or stable union?" The methodology adopted consists of a broad bibliographical review, covering doctrine, jurisdiction and legislation relevant to the topic. Several authors and court decisions relevant to understanding the institution of mandatory separation of assets were analyzed. As a result of the research, Brazilian legislation maintains the application of mandatory separation of assets in certain situations, which has generated debates regarding its constitutionality. There was a finding of doctrinal and jurisprudential divergences, mainly regarding the understanding of Precedent 377 of the Federal Supreme Court, which, over the years, has undergone changes in the way it is interpreted, especially regarding the need to prove the common effort for communication of the assets acquired during the union of the parties. The conclusion of this study highlighted the importance of deepening analyzes of the unconstitutionality of the mandatory asset separation regime and its impact on the private autonomy of the parties involved. It was evident that the topic is complex and requires more comprehensive and multidisciplinary investigations to fully understand its implications for family and property relationships. The research contributed to shedding light on relevant aspects of this topic and paved the way for future, more in-depth investigations. [resumo fornecido pelo autor]