Trial debuts of a new model in the court, which allows a time interval between oral arguments and ministers’ votes
The STF (Supreme Federal Court) began judging on Wednesday (Oct 18, 2023) whether the regime of mandatory separation of assets in the marriage of people over 70 years of age and the application of this rule to stable unions is constitutional. The rapporteur is Minister Luís Roberto Barroso, president of the Court.
The Extraordinary Appeal with Appeal, number 1309642, was added to the agenda for the presentation of oral arguments by the parties involved and third parties admitted to the process for manifestation. In other words, the trial has not yet been concluded.
Understand the case
The original action concerns an inventory in which the property regime to be applied to a stable union initiated when one of the spouses was over 70 years old is discussed. The first instance court considered the general regime of partial community of property applicable and recognized the partner’s right to participate in the hereditary succession with the deceased’s children, applying the thesis established by the Supreme Court that the distinction between succession regimes between spouses and partners is unconstitutional. (RE 646721).
The judge declared, for the specific case, the unconstitutionality of article 1,641, item II, of the Civil Code, which establishes that the property separation regime must be applied to marriages and stable unions of people over 70 years of age, under the argument that that the prediction violates the principles of human dignity and equality. According to the decision, a person aged 70 or over is fully capable of carrying out all acts of civil life and freely disposing of their assets.
However, the TJ-SP (Court of Justice of the State of São Paulo) reformed the decision, applying the separation of assets regime to stable unions, in accordance with article 1,641. For the TJ, the intention of the law is to protect elderly people and their necessary heirs from marriages carried out for economic and patrimonial interests.
In the STF, the partner wants the unconstitutionality of the Civil Code provision to be recognized and the general regime of partial community of property to be applied to her stable union.
Social impact
When speaking about the general repercussion of the topic, Minister Luís Roberto Barroso cited the relevance of the matter. From a social point of view, the definition of the property regime has direct impacts on the organization of life in Brazilian society. From a legal perspective, it is related to the interpretation and scope of constitutional norms that ensure special protection for elderly people. And, from an economic perspective, the thesis to be established will directly affect the patrimonial and inheritance regimes of those over 70 years of age.
Total separation
According to article 1,641, item II, of the Civil Code, the property separation regime is mandatory in the marriage of people over 70 years of age. The STF will also discuss whether this restriction, if validated, extends to stable unions.
Inventory
In the case under trial, the partner of a man with whom he entered into a stable union when he was over 70 years old obtained, in the first instance, the right to be part of the inventory and participate in the sharing of assets together with the deceased’s children.
Marriage for interest
However, the TJ-SP, based on the provision of the Civil Code, applied the separation of assets regime to stable unions, as it understood that the intention of the law is to protect the elderly person and their heirs from possible marriage for interest.
Partial communion
In the STF, the partner wants the unconstitutionality of the Civil Code provision to be recognized and the general regime of partial community of property to be applied to her stable union.
Social impact
The thesis to be approved in this trial will be applied to other similar cases. The recognition of the general repercussion of the matter (Theme 1,236) took into account, among other points, respect for autonomy and human dignity, the prohibition of discrimination against the elderly and the protection of stable unions.
With information from Federal Court of Justice
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