A exigência da separação obrigatória de bens para maiores de 70 anos: uma análise da sua constitucionalidade

Abstract

The present study addresses the implications of the requirement for mandatory separation of assets for individuals over 70 years of age, as established by article 1,641, item II, of the Civil Code of 2002. Brazilian legislation, from the Civil Code of 1916 to the modifications introduced by Law no. 12,344/10, establishes asset separation for spouses over the age of 70, aiming to preserve assets and protect elderly people from unions motivated by economic interests. The methodology adopted for this research is predominantly bibliographic, with a critical analysis of current legislation, legal doctrine and jurisprudence positions. The central discussion revolves around the possible unconstitutionality of article 1,641, item II, of the Civil Code, arguing that such a requirement contradicts the constitutional principles of equality, freedom, human dignity and autonomy. The research also highlights discrepancies in relation to the rules that govern civil negotiating capacity, highlighting a possible contradiction in the legal system. By analyzing the problem, the study seeks to understand whether the requirement for mandatory separation of assets for those over 70 years of age is in accordance with constitutional precepts. As specific objectives, we intend to discuss the provisions of the aforementioned article, debating its constitutionality in light of the fundamental principles established by the Federal Constitution of 1988. The desired conclusions aim to offer insights into the relevance and adequacy of the legislation in question, contributing to the debate legal framework and providing support for possible regulatory revisions. The research thus aims to stimulate critical reflection on the relationship between civil legislation and fundamental rights, especially in the context of population aging and contemporary social transformations.