Derrotando o etarismo? Uma análise sobre as possibilidades de flexibilização do regime obrigatório de separação total de bens para maiores de 70 anos

Abstract

The Brazilian Civil Code has four types of property regime, which can be freely chosen by the spouses at the time of the qualification process. However, in some cases, the aforementioned Code does not allow free choice, but imposes a single regime, namely, the total separation of property. One of the cases of mandatory incidence of this regime is aimed at the spouse over 70 years of age. Taking into account its merely age criterion, it is noted that such imposition comes to hurt, at first, the private autonomy of the elderly person. In this sense, from the application of the hypothetical-deductive method and the bibliographic review, the objective is to analyze the obligation of the regime of separation of property for people over 70 years old, in order to investigate possibilities of flexibilization of the referred rule. In this way, it is important to understand, first, the legally established property regimes and, from there, to carry out an investigation about the legal and social perception regarding the elderly, as well as what is behind the obligation of such a rule, in order to discuss the possibilities of its flexibility through the understanding of its prima facie character, which will remain evidenced through the phenomenon of the defeatability of legal rules.