The Contractualization (or not) of the Family Law: new prospects for the resolution of conflicts
Por Luís Felipe Barbosa Heringer - Direito/UnB - Monitor da matéria de Direito de Família
One of the most recent themes debated on the University of Antwerp, Belgium, really reflects on Brazilian law system. The motions in which international family law is finding paths are highly debatable. Some legal professionals firmly sustain the best solution is holding place in the good and old contracts, so familiar to the juridical worldview. Others defend the way to go is discovering the new, taking away the contract as the main instrument for materializing those private relations.
The first point of view attests that the key for solving the modern struggles has always been right in front of our eyes: The Contract. The base for that enlightenment is essentially the private autonomy, the individual freedom. In that sense, those two work as a pendulum. Especially in this subsystem, there is a greater weight on the pendulum caused by the intrinsic private autonomy present on family relationships in comparison to normal contractual relationships. It is a fact that Family Law has a stronger state interventionism tendency than the contractual common place, but the essentiality of private autonomy in family relations prevents the withdrawal of this instrument’s central position.
In contrast, the “descontractualization” point of view sets some counterarguments. By challenging the automatic incidence of private autonomy in family relations, this position affirms that still are economic discrepancies between genders in our modern society. The premise find strength in extensive empirical and statistical data. Thereof, this particular position searches for the viability of a new and different patrimonial division in order to protect the “weaker” side. The theoretical framework present here seeks to show that equality is not always justice. Moreover, possible paths for solutions might be found in different forms of contracts, such as consumer contracts, in a clear purpose to protect the vulnerable.
In Brazil, we have this debate silenced in the jurisprudence. The last time it was discussed was in 2010, in São Paulo’s Justice Court inside the Interlocutory Appeal n. 569.461.4/8. By then, the contractualization of family law seemed to be the preferential idea. In that litigation, the prenuptial agreement was mitigated when confronted with the principles of public order, social function of the contract and good faith, an emphasis well known inside the contractual field transposed into family juridical relations, strongly reaffirming the contract as central and essential mechanism for materializing the family law.
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