novembro 08, 2022

Family contracts: each family can create its own Family Law - By "Dimitre Soares"

Family contracts: each family can create its own Family Law  

By Dimitre Braga Soares de Carvalho 1 

1. A new look at family contracts.

The current configuration of the family and Family Law, in Brazil and in the world, has been facing deep and intense transformations, especially in the last two decades. Changes in the roles of family members, an increase in people's life expectancy, gender re-discussion, demographic changes, transformations in privacy, the reshaping of sexuality, full female independence, advances in reproductive medicine and the constant and increasing presence of technology in people's lives are just a few factors that influence the contemporary Brazilian family2.

New affective projects and family models are emerging, concomitantly with the changes that are happening in society. In many cases, the Family Law provided is no longer sufficient to resolve the issues specific to this historical moment, with its singularities, achievements and realities. People's expectations regarding the affective bond, marriage, children and life together are in a clear process of modification. The new generations demand the construction of specific rules of Family Law for each one of them, respecting the options and peculiarities of each individual, as well as each family grouping.

In the past, rules were for “lifetime”. People married to live “till death do them part” or to “be happily ever after”. Today, on the contrary, the rules must serve each family life cycle.3 For this reason, it is necessary to divide Family Law contracts into groups, each one representing one of these cycles of existence of a couple or family entity. Time passes, things change, even for families. For the new generations, a new Family Law is needed.

From the gathering of these boiling elements, specific consequences are generated for the study of Family Law, with emphasis on the recognition of the privatization of the State, through the reduction of its space of action in the scope of family privacy; in the deinstitutionalization of the family; the existence of a phenomenon of judicialization of family relationships; the deliberate non-application of positive norms (modality of civil disobedience); the possibility of discussing the existence of a “minimum Family Law” and the frank recognition of the spaces of “non-law” in the scope of Brazilian Family Law.

It is understood, therefore, that the rules of coexistence need to be defined by the couple or family group, instead of being imposed by the State. The kaleidoscope of the contemporary family is made up of less lasting relationships, based above all on affection and love involved, valuing individualities and real intertwined desires. The path taken by Jean Carbonier, in the sense that each family is given its own Family Law, makes us think, once again, about the role of the Modern State in the organization and preservation of the family structure4.

Family Law, at the same time, must be seen as the maximum manifestation of legal freedom. We live in the time of the subjectivization of the family and of Family Law itself. It is understood that everyone can choose and define what family should mean in their lives, especially through non-patrimonial contracts.5 In this way, there is a bet on the reduction of the spaces of state regulation within the scope of families and on the full

autonomy of will of the parties in private relations. Can each family create its own Family Law? Why not?

However, it is worth remembering: no affective or family contract can disrespect the human dignity of those involved, treat men and women differently, make distortions possible due to gender issues, tolerate any type of physical, psychological or patrimonial violence, or fail to observe the constitutional rights and guarantees of children, adolescents, the elderly, people with disabilities or any other group in a vulnerable situation.

2. The crisis of codified Family Law and the replacement of the legislated norm by the constructed norm by the will of the parties themselves.

The so-called “postmodern family” transforms the traditional family structure, making it more malleable, adaptable to current concepts of humanity. It is true that, in this context of postmodernism, the deconstruction of traditions was taken to the maximum of its potential, associated with the extreme individualism of our times. The complexity of so many changes, in parallel with an incredible set of intense transformations also in the area of technology, stimulated a renewed perspective of interpersonal relationships, even without knowing, exactly, if there were advantages or disadvantages of so many changes. Intimacy gains new contours, reaching an air of supremacy. The family is deinstitutionalized, while it is instrumentalized.

It is necessary to recognize (even in the face of permanent conservatism in society) the subjectivist conception of the family, according to which each person has the right to direct their affectivity in the most appropriate way, resulting in a wide range of possibilities for constituting a family.

This trend favors an expansion of the field of privacy and intimacy, simultaneously when the influence of public order principles (considered contrary to the ideal of freedom) diminishes. The legal organization of the family and matrimonial law are now seen as legal aspects in frank decadence, since they regulate aspects of family life in a standardized way, hindering individual manifestations of affection and sexual relationships.

Faced with such relativism, Law, especially Family Law (possibly this in many fields with more reason than other branches of Law) has been transformed into an individual right, a concrete case law that, when it generates norms, it does it through contractual models, negotiation between private subjects.

The Family Law legal system needs to be analyzed as a phenomenon of “action and reaction”, evidenced by the “order and disorder” of the social organization, identified by admissibility of civil disobedience to the law or act of authority. In other words, the law – a product of legislative reason – and the loss of the authority of the law, a current phenomenon, fueled by the decharacterization of legislative representation, the emergence of minority groups that demand their own normativity, the plurality of family forms, mass communication, the problem of consumerist society, the liquidity of interpersonal relationships, the challenge to classical moral values, etc.

From the point of view of Family Law, at the same time, it is possible to affirm that the progressive departure from the norm is a form of civil disobedience. It would be a way of expressing the right of resistance. In this peculiar characteristic, the phenomenon of loss of meaning and importance that the positive Family Law has been facing is clearly shaped. What underlies, then, is that civil disobedience in Family Law works, from a legal perspective, as a mechanism for measuring and – why not say – for controlling the justice/injustice criteria of the norms that govern contemporary society.

The need for full recognition of private autonomy in family relationships is based precisely on the distortion between the legal situations provided for in the norms and the mismatch of social reality. The loss of the legal reference of the normative system of the matter, accompanied by the overwhelming growing jurisprudence of the last twenty years, has made the rise of (in Brazil, as well as in practically the entire western world) a jurisprudentialized Family Law, reaching closer, in what is possible, to the Common Law system. We live in a unique historical moment, in which judicial decisions are more important than the norm created by the Legislative Power. Thus, one of the paradigms of modernity is overturned, according to which it was only up to the legislator to construct the norm. In modern Family Law, the “law” is reconstructed and reinvented every day, in a clear “liquidity” of legal norms6.

The crisis of codified Family Law and the judicialization of family relations are linked and interdependent legal phenomena. Judicialization, to a large extent, results from the loss of symbolic power and the frank decrease in the use and decreasing influence of codified Law in the context of family relations. In this way, understanding that each family can build its own Family Law is a radical change in the Brazilian legal system, which points to the decrease in state importance, reduces bureaucracy for the family, removes “legal inflation” (characterized by the increasing production of norms) and overvalues individual convictions about their own legal relationships.

3. Family contracts: modalities.

The contractual models are briefly presented by groups and can be applied in different categories from those originally listed, in addition to the possibility of adapting to the circumstances of each case. The role is exemplary. In our current society, each family can establish its own rules of coexistence. This means that family pacts can be built that meet the needs and interests of each couple/family group over time.

3.1. Prenuptial Agreements. 

Prenuptial contracts or prenuptial agreements are the most traditional family contracts in Brazilian law, and initially serve to formalize property rules such as property regime, donations between spouses and administration of private property. However, the interpretation that has been made is also in the sense that prenuptial agreements act as a tool for building the rules of coexistence of the family that will be constituted7.

In practice, a much larger number of rules can be stipulated through a prenuptial agreement, especially rules that are not necessarily patrimonial or economic, which are the so-called existential rights pacts8. Among them, we can highlight the following: -

establishment of a Penalty Clause (fine) in the event of domestic violence; - negotiation over the distribution of domestic work; - pacts that discipline the care of the children, hours of dedication to school activities at home and monitoring of extracurricular activities; - agreements on sexual intercourse: frequency of intercourse/ number of intercourse per week or month/ establishment of monogamy as a rule (or not), among others.

3.2. Intramarital Agreements or Renegotiation of Cohabitation. 

A postnuptial agreement (or in the more appropriate term we propose: “intramarital”) is essentially the same thing as a prenuptial agreement: it serves to define property and coexistence rules throughout the relationship. The only difference is when it is performed. A postnuptial agreement is signed during marriage or common-law marriage, not before, as is the case with prenuptial agreements.

These contracts can be a favorable option for people/couples who, despite facing difficulties throughout the affective relationship, do not want to end their marriage or their stable union, but would like to make the bond stronger, more interesting and adapted to the changes that the time imposes on each individual's life.

Notably for property issues, the resetting of rules is decisive for the economic life of the couple/family, throughout their coexistence, above all to avoid economic fraud in the constancy of family life.

It is important to remember that in all relationships, many decisive questions about the other person or about the organization of the family can only be discovered and understood with the passage of time, during the coexistence. Hence the need for an adjustment, along the way, so that things are more comfortable and safer for everyone involved.

Some agreements are intended to provide more economic or patrimonial security to the couple or to the members of the relationship individually considered. Others may be of an existential nature, in order to set a course correction of the relationship, change internal rules of coexistence, re-discuss rules about the sexuality of the couple or the family entity, update preferences and consolidate changes in lifestyle, professionals and

personal information of each of those involved in the relationship. It serves, most of the time, to strengthen the marital relationship itself.

3.3. Pre-divorce agreements or contracts prior to the dissolution of the stable union. 

Often, the end of a marriage or stable union is imminent and irreversible. For personal reasons, betrayals or several other reasons, affective relationships come to an end. In this moment of emotional instability and uncertainty about the future, it is essential that the parties involved are able to establish the goals and paths to be followed when the relationship ends.

It is necessary to overcome the old view that divorce meant a war between ex-partners who became enemies, especially when there are common children. It becomes essential to create rules so that divorce (or dissolution of a stable union) is consensual, non-litigious or with as few procedural disputes as possible. Similarly, procedural choices can be made that shorten the duration of the suits, stipulate limitation of resources, so that the processes do not perpetuate the dispute for the dissolution of the old family. Agreements on procedures in family suits represent an auspicious trend.9

Some couples are also business partners, and they need to stipulate ways so that the end of the affective relationship does not imply dissolution of the business and expansion of economic losses. The use of common assets, the initial sharing of assets and arrangements for fixing any alimony may also be the subject of these pre-divorce agreements.

It is still possible to include, for example, issues related to not carrying out acts of parental alienation, restrictions on publications on social networks, rules on child custody, clauses for the adjustment of food at each time or term cycle, the possibility of appointing a “representative” or “administrator” to manage the couple's decisions on divorce or arbitration cases in Family Law.

3.4 Post-divorce agreements or post-dissolution of stable unions.

 Post-divorce or post-stable union agreements aim to readjust, whenever necessary, the agreements or decisions that were established at the end of the affective relationship. They concern the maintenance and construction of a harmonious coexistence between people who maintain, even after the divorce or dissolution of the stable union, legal bonds in common. This is the case of caring for children, people with disabilities, use of common assets, shared management of businesses owned by ex-spouses or partners, moving to other cities/countries or periodic readjustments of alimony.

Post-divorce agreements represent very well the proposal for the progressive construction of legal norms for families over time. This is the way to exercise the full autonomy of the parties' will, maintaining affective balance and respect between those involved.

3.5. Other contracts.

 In addition to the models indicated above, it is worth remembering that other contracts are possible to be created. Some contracts may be stipulated for specific groups, special situations or certain occasions. The idea, in fact, is to build contractual models that may strictly comply with the norms of Brazilian legislation, but that meet the specific interests of each couple, group or family.

4. Validity, invalidity and fulfillment of family contracts.

Trust is the cement of human relationships. According to Clóvis do Couto e Silva, the obligation is a process that develops towards compliance10. In Family Law contracts it could not be different. Incompliance keeps the debtor imprisoned and bound by the successive obligation to indemnify, even when the personality rights are negotiated;

Removing the “pacta sunt servanda” from the contractual relations of Family Law would generate a crisis of trust, weaken the autonomy of the will and decharacterize the meaning of the very rights of the personality involved in the negotiations. That is, the vector of trust, through the stabilization of expectations created and the predictability of legal transactions, reinforces the autonomy of personality rights involved in family contracts.

The question of the validity of family contracts is therefore preponderant. For Gustavo Tepedino, family property businesses are valid as a rule. The existential family business, in turn, are possible subjects of judicial inquiry, taking into account the peculiarities of the situation, the reality of the parties and the legal dimension given to the business.11

For Jorge Duarte Pinheiro, specifically on agreements on sexuality, pacts of lasting abstinence would be invalid, based on the thesis that sexual intercourse constitutes the intangible core of conjugal communion. On the other hand, agreements whose content exceeds the minimum standard, providing for a high frequency of sexual relations, is valid, as it is motivated by a joint search for well-being and which allows for a deepening of the couple's bond12.

For Pontes de Miranda, property issues are the essence of the prenuptial agreement. Other matters, if dealt with, will be considered "common legal business", which would allow only partial addictions, consequences other than nullities and other unavoidable accidents to the whole legal business. In the event of eventual nullity, even with a classic and conservative conception of the matter, the law master from Alagoas reinforces the possibility of verifying, in the specific case, the legal feasibility of each pact, taking into account the dominant conceptions in the social circle in which the business will take place. to be effective, anticipating by many decades the perspective of multiculturalism, so in vogue in the current historical period. 13

Thus, if there is a need for a judicial manifestation, if there are conflicts of interest in Family Law contracts, two parameters can help the State to carry out the consideration that the circumstance requires, avoiding judicial decisionism and feeding legal certainty. Both one and the other interpretative parameters involve several theoretical and practical

discussions (whose deepening is not possible in the introductory purposes of this article), but it is pertinent to point them out.

The first, indicated by Daniel Sarmento, concerns the investigation of the degree of factual inequality between those involved. In this way, there would be possible judicial intervention in order to verify if the parties would be at compatible levels of contractual balance. The author maintains that, in cases involving existential issues, private autonomy will have a greater weight than in cases concerning economic-patrimonial issues. Furthermore, in the latter cases, the protection of private autonomy in the face of a possible restricted fundamental right should vary depending on the essentiality of the asset involved. The importance of this criterion consists precisely in the attempt to avoid a totalitarianism of fundamental rights or the forced homogenization of individual behavior based on guidelines considered “politically correct”, at the expense of pluralism and the very liberating dimension that characterizes fundamental rights. 14

The second, known as Teresa Negreiros' criterion of essentiality of the legal good, constitutes an objective parameter to support the necessary judicial decision on compliance (or not) in Family Law contracts.15 The elegant perspective of the professor from Rio de Janeiro faces the question of the abstract hierarchy of what is superfluous, useful or essential to people's lives, over time, emphasizing the change that wills undergo over the course of life and human experience.

As for the fulfillment and satisfaction of family contracts, it is necessary to remember that, in the case of strictly personal obligations (which by their nature cannot be coercively demanded) the breach will be accounted for only by the penalty clause. Out of respect for Fundamental Rights, the assessment of compliance (or not) of obligations of an intimate nature cannot be the subject of judicial investigation, especially if such inquiry invades privacy and harms the human dignity of the parties involved. It is convenient to analyze the issue from the perspective of obligations as “extra-legal duties”, or as “relevant legal relationships”, that is, they are realities that escape the classic paradigm of codification, as they are based on a new conception of legal assets16.

At last, only for the record, other elements that could also be used, with the aim to pedagogically lead to the fulfillment of family law contracts, are the instruments available within the Brazilian Civil Code itself: the modalities of “penal clauses”, applicable in the scope of Family Law (moratorium penal clause and indemnity penal clause), the “supplementary indemnity” and the “astreintes”.

5. Conclusions.

The striking question raised by Jean Carbonnier (“Where does the family go?”?) is the keynote of the contemporary discussion about the role of Family Law and, above all, what is the exact relationship between Family Law and the family of our times17. The growing individualism present in the current family - which many authors use to identify that this would be a "postmodern" phenomenon - would be progressively establishing the space of "non-law" in the sphere of family relations.

According to this reasoning, it would be possible to delimit the environment of "law" and the environment of "non-law" in interpersonal relationships, with Family Law, in essence, at this historical moment, the space of "non-law", since this trend would be in accordance with the evolutionary scale that the family branch has been experiencing, in Brazil, since the second half of the 1980s.

It is understood that, among the basic values of post-modernity, the recognition of multiculturalism, the plurality of lifestyles, and the denial of a universal claim to one's

own way of being. In other words, it is the acceptance of the “irreconcilable”. From the perspective of Family Law, pluralism means having alternatives, options and legal possibilities available to solve specific cases that demand intervention by the Judiciary. The Brazilian experience of building rights for families is, by nature, intrinsic, complex and diverse.

The cultural identity that marks the history of the formation of the Brazilian family has its own characteristics and highlights the intense miscegenation of races and cultures. There are different types of rights, arising from regional, economic, climatic conditions and from their sociocultural background. Allied to the peculiar formation of the Brazilian people, the influence of external and standardizing factors that influence the construction of a multicultural and pluralized Family Law culture is juxtaposed.

Alongside the theoretical and methodological changes, there was a slow and gradual process of subjectivization of affective relationships in western society and, in particular, in Brazilian society. This process authorized the creation of a particular way of thinking about affective and family relationships, with a freedom never imagined, relegating to ostracism, more and more, the codified norms on Family Law, which remained focused much more on patrimonial aspects than on personal ones. of protected rights.

A continuous act, the evolutionary journey of Brazilian Family Law, based on the premises that shape its form and give it a special color, points to the full contractualization of family relations as its next frontier. Obviously, such freedom is not unlimited, and it needs to be anointed with validity and the possibility of legally fulfilling the contract, bets that are strictly restricted by the constitutional principles of respect for people's human dignity, the cult of freedom, the prohibition of discriminatory treatment, maximum respect for equality between men and women, the supremacy of the best interests of children and adolescents and protection of the vulnerable. Within these limitation patterns, there is no doubt that each family can indeed build its own Family Law.

 6. Bibliographic References. 

 AGUIRRE, Carlos Martínez.Diagnóstico sobre el Derecho de Familia. Madrid: Ediciones Rialp, 1996. 

 ALOF, E.; VERBEKE, A.-L.; MORTELMANS, D.; DEFEVER, C. Gender Inequalities and Family Solidarity in Times of Crisis (Decontractualisation of Family Law). Available at: Accessed 23/10/2019. 

ALVES, Leonardo Barreto Moreira. Direito de Família Mínimo. Rio de Janeiro: Lumen Juris, 2010. 

BATISTA, Sílvio Neves. Contratos no Direito de Família. In: PEREIRA, Rodrigo da Cunha (org). Família e Solidariedade. Anais do VI Congresso Brasileiro de Direito de Família. Rio de Janeiro, Lumen Iuris, 2008. 

BECK, Ulrich; BECK-GERNSHEIM, Elisabeth. El normal caos del amor – Las nuevas formas de relación amorosa. Barcelona: El Roure Editorial, 2001. 

BOTTON, Alain de. O Curso do Amor. São Paulo: Editora Intrínseca, 2017. 

CARBONNIER, Jean. Derecho Flexible: para una sociología no rigurosa del derecho. Madrid, Editorial Tecnos, 1974. 

CALMON, Rafael. Direito das famílias e processo civil. São Paulo, Saraiva, 2017.

CARVALHO. Dimitre Braga Soares de. A crise do Direito de Família codificado no Brasil. Curitiba Juruá, 2019.

FARIAS, Cristiano Chaves; Rosenvald, Nelson. Direito das Famílias. Rio de Janeiro, Lumen Juris, 2011. 

GROSSMAN, Joanna L., FRIEDMAN, Lawrence Meir. Inside the Castle : Law and the Family in 20th Century America. Princeton University Press, 2011, p. 22. 

HASDAY, Jill Elaine. Family Law Reimagined. Cambridge, Massachusetts : Harvard University Press. 2014. 

JULES, Adrienne Hunter; NICOLA, Fernanda G. The Contractualization of Family Law in the United States. Available at:, Access in: 23/10/2019.

 MIRANDA, Francisco Cavalcante Pontes de. Tratado de Direito de Família, Vol. II. Campinas, Bookseller, 2001. 

MULTEDO, Renata Vilela. Liberdade e família: Limites para a intervenção do Estado nas relações conjugais e parentais. Rio de Janeiro: Processo, 2017.

NEGREIROS, Teresa. Teoria do contrato: novos paradigmas. Rio de janeiro: Renovar, 2006. 

NERY, Rosa Maria de Andrade. Segurança patrimonial da família: institutos jurídicos a serviço da liberdade dos nubentes na confecção do pacto antenupcial. In: BASSET, Ursula Cristina; SILVA, Regina Beatriz Tavares (orgs.). Família e Pessoa: uma questão de princípios. São Paulo: YK Editora, 2018. 

PINHEIRO, Jorge Duarte. O Direito de Família contemporâneo. Lisboa: Almedina, 2017. 

PINHEIRO, Jorge Duarte. O Núcleo Intangível da Comunhão Conjugal. Os deveres sexuais conjugais. Lisboa: Almedina, 2004. 

ROUDINESCO, Elisabeth. A família em desordem. Rio de Janeiro: Zahar, 2003. 

SARMENTO, Daniel. Direitos Fundamentais e relações privadas. Rio de Janeiro: Lumen Juris, 2010. 

SILVA, Clóvis do Couto. A obrigação como processo. Rio de Janeiro : Editora FGV, 2006.

SWENNEN, Frederik (coord). Contractualisation of Family Law – Global Perspectives. Suíça: Stranger International Publishing, 2015. 

TEPEDINO, Gustavo. Contratos em Direito de Família. In: PEREIRA, Rodrigo da Cunha (org.). Tratado de Direito de Família. Belo Horizonte: EDITORA IBDFAM, 2019.

 VENOSA, Sílvio de Salvo. Contratos Afetivos: o temor do amor. In: PEREIRA, Rodrigo da Cunha (org.). Família: entre o público e o privado. Porto Alegre: Lex Magister, 2012.


1. Adjunct Professor at the Department of Private Law at the Federal University of Rio Grande do Norte – UFRN and at UNIFACISA. Lawyer specialized in Family and Inheritance Law. Post-Doctor in Civil Law by the Postgraduate Program in Law at the Federal University of Pernambuco – PPGD/UFPE – Recife Law School - FDR. Member of the Research Group Constitutionalization of Private Relations – CONREP. 

2. “The law shapes all of our lives, even when we don't realize it is there. it decides who has rights to what, who can make enforceable claims on whom, who is entitled and who is not. Family life is sometimes presumed to be a realm so private and intimate as to be beyond the law's power.(...) Family law questions are perennial subjects of popular fascination, political contestation, and legal dispute. Countless judges, legislators, regulators, lawyers, advocates, and individuals face family law issues every day, family law cases fill a substantial proportion of court dockets, and law schools offer family law courses every semester. yet despite its significance, family law remains remarkably undertheorized and poorly understood.” (HASDAY, Jill Elaine. Family Law Reimagined. Cambridge, Massachusetts : Harvard University Press. 2014, p. 12.) 

3.“Families, like people, are born, grow, and die”. (GROSSMAN, Joanna L., FRIEDMAN, Lawrence Meir. Inside the Castle : Law and the Family in 20th Century America. Princeton University Press, 2011, p. 22.) 

4. CARBONIER, Jean. Derecho Flexible: para una sociología no rigurosa del derecho. Madrid, Editorial Tecnos, 1974, p. 18.

 5. SWENNEN, Frederik (coord). Contractualisation of Family Law – Global Perspectives. Switzerland: Stranger International Publishing, 2015. 

6. CARVALHO. Dimitre Braga Soares de. A crise do Direito de Família codificado no Brasil. Curitiba Juruá, 2019, p. 11.

 7. In this matter, the content of the statement nº. 635 from VIII Jornada de Direito Civil do CJF: “O pacto antenupcial e o contrato de convivência podem conter cláusulas existenciais, desde que estas não violem os princípios da dignidade da pessoa humana, da igualdade entre os cônjuges e da solidariedade familiar.” 

8. “No Direito de Família, a dimensão pessoal prevalece sobre a patrimonial. Apesar do peso dos aspectos patrimoniais, é a vertente pessoal que marca o regime da relação familiar. Na óptica legal, a constituição da relação conjugal não é um meio de aumentar o patrimônio ou de prover as futuras necessidades econômicas; destina-se a criar uma comunhão tendencialmente plena de vidas, uma comunidade de pessoas, não de bens. (...) O que se pretende é que , num primeiro momento, haja um espaço de vivência pessoal comum e, depois, num momento de maior autonomia dos filhos perante os pais, que haja um relacionamento pautado por valores imateriais”. (PINHEIRO, Jorge Duarte. O Direito de Família contemporâneo. Lisboa: Almedina, 2017, p. 58.). 

9. “A liberdade convencional é consideravelmente ampla. Como resultado, as partes podem tanto criar um procedimento específico quanto promover mudanças no rito criado pelo legislador ou meramente convencionar sobre seus respectivos ônus, poderes, faculdades e deveres processuais estabelecidos pela lei. (...) Não é preciso que exista um processo em andamento, porém, para que tais acordos sejam celebrados. Daí se poder falar em convenções ajustadas prévia ou incidentalmente ao processo. Acordos pré-processuais ou processuais, portanto.” (CALMON, Rafael. Direito das famílias e processo civil. São Paulo, Saraiva, 2017, p. 190.) 

10. SILVA, Clóvis do Couto. A obrigação como processo. Rio de Janeiro : Editora FGV, 2006. 

11.TEPEDINO, Gustavo. Contratos em Direito de Família. In: PEREIRA, Rodrigo da Cunha (org.). Tratado de Direito de Família. Belo Horizonte: EDITORA IBDFAM, 2019. 

12. PINHEIRO, Jorge Duarte. O Núcleo Intangível da Comunhão Conjugal. Os deveres sexuais conjugais. Lisboa: Almedina, 2004, p. 145.

 13. Referring to family contracts, the master Pontes de Miranda teaches us: “Cabe ao juiz auscultar a ordem jurídica, apreciando o ato ou a cláusula, conforme concepções dominantes no seu círculo social. Aliás, o círculo social que ele ausculta não é necessariamente o do lugar em que o pacto antenupcial terá eficácia.” (MIRANDA, Francisco Cavalcante Pontes de. Tratado de Direito de Família, Vol. II. Campinas, Bookseller, 2001, p. 34.) 

14. “Quanto maior for a desigualdade, mais intensa será a proteção ao direito fundamental em jogo e menor a autonomia privada” (SARMENTO, Daniel. Direitos Fundamentais e relações privadas. Rio de Janeiro: Lumen Juris, 2010, p. 187.) 

15. “Não é possível hierarquizar de forma abstrata aquilo que é supérfluo, útil ou essencial, pois as vontades humanas de pessoa para pessoa, e mesmo uma só pessoa, ao longo da vida, pode experimentar necessidades contingentes. A destinação do bem na concretude do contexto determinará a incidência de um regime mais ou menos intervencionista sobre a relação contratual”. (NEGREIROS, Teresa. Teoria do contrato: novos paradigmas. Rio de janeiro: Renovar, 2006. p. 62). 

16. As Cristiano Chaves de Farias and Nelson Rosenvald remind us, the protection of existential situations demands the preservation of legal assets that emanate from the dignity of each human being. These are legal assets that escape the logic of appropriation. The conceptual remodeling of the legal asset is not limited to the measurement of its expansion in the sector of personality rights and the protection of a legal sphere, as contractual relations are submitted to the framework of constitutional values (horizontal effectiveness of fundamental rights). Traditionally, any legal asset revealed purely patrimonial aspirations. However, the insertion of the human being as the foundation and end of the legal system causes the refoundation of the theory of heritage, as the protection of human needs becomes a criterion and measure of the contour of legal assets.(Farias, Cristiano Chaves; Rosenvald, Nelson. Direito das Famílias. Rio de Janeiro, Lumen Juris, 2011). 

17. “Há cem anos, os cientistas perguntavam de onde vem a família; hoje eles perguntam para onde ela vai”. (CARBONNIER, Jean. Derecho Flexible: para una sociología no rigurosa del derecho. Madrid, Editorial Tecnos, 1974, p. 84).

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