A intervenção do Estado nas relações de família: limites e regulação

Abstract

The theme of this thesis is the State intervention in the context of family relationships. The main goal was to delineate non-regulation spaces and set limits and rules for the State heteronomy. As a theoretical framework we adopted the methodology of civil constitutional law. We were also inspired by the proposals of the North American libertarian paternalism without neglecting its compatibility with the constitutional principles, in order to set parameters for legislative intervention in the context of family relationships through default rules made compatible with the freedom of choice. To this end, we sought to investigate the legitimacy and justification of the legislative and judicial interventions in parental and marital relationships, based on the collation between public policy and private autonomy. In the context of parental relations, considering that the lawmakers assigned the full extent of the parental power to the parents, we analyzed the reasons for State intervention within parental authority, especially when it comes to restricting the autonomy of children and adolescents in their existential choices even when granted parental consent. We also regarded legislative heteronomy, opting for the analysis of two of the main hypotheses of State intervention in the child and adolescence s rights to family coexistence: adoption of joint custody as a rule and grandparent s visitation rights. Finally, still regarding the parental relationship, we analyzed the judicial intervention that recognized the socioaffective parenting in Brazilian law. Within the axis of marital and partnership relations, based on minimalist regulations when it comes to the terms of marital prenuptial, and pre civil partnership agreements, and on a critical review of marital duties, we proposed simultaneously a greater freedom when it comes to people s intimate decisions and the permanence of the interventions that are based on family solidarity, like alimony. We concluded that, in this scope, the autonomy of the parties should be favored and, therefore, the State should intervene only to ensure the equality and dignity for those who decide to join in a familial relationship. In this context, it is clear that there is a need for regulation in order to promote the welfare and solidarity, without limiting people s existential autonomy, taking into account the peculiarities of each case, since the legal phenomenon cannot subtract from the complexity of factuality, an essential component of normativity. We found that in the context of family relationships there are spaces of non-intervention that must be preserved because they regard intimate choices. We also believe that, on one hand, it is justifiable to warrant regulations that guide and promote the dignity of its members, but on the other hand, it is also essential that State heteronomy ensures fundamental rights as well as the protection of the parties who stand in vulnerable positions. We concluded that a basic regulation towards the well-being - through the promotion of rights and protection of people in vulnerability - without eliminating freedom of choice is in line with the pluralism and the exercise of freedom shaped by family solidarity, in consonance with constitutional imperatives.