União estável septuagenária e a exigência de comprovação de esforço comum para a partilha de bens durante a convivência

Abstract

The purpose of this paper is to make explicit the change in the jurisprudence related to stable union, namely that it is indispensable to prove the common effort after the dissolution of the stable union in the moment of the sharing of goods when one of the cohabitants is elderly. In the current situation, which is a theoretical basis for our work, it is worth noting that due to the secrecy of justice, the more detailed information was not made available, including the case number and disclosure of the Judgment, regarding stable The companion was already more than 60 years old and still keeps a watch on the Civil Code of 1916, which is subject to the regime of compulsory separation of property (article 258, I). The old rule also fixed in more than 50 years the age of the women so that the regime of separation would be adopted obligatorily. The current Civil Code, 2002, establishes the regime of separation of assets for people over 70 (article 1.641, II). In this context, as already mentioned, the indispensability of proving the common effort in the constitution of the patrimony, indicates a change, also, in the jurisprudence, therefore, it understood on the basis of the legal presumption of the common effort, foreseen in the law that regulated the stable union 9.278 / 96), and in this specific case analyzed in our work, the presumption of the common effort is excluded because it is the most appropriate regime of property, in this context, the regime of mandatory separation in both the Civil Code of 1916 and the Civil Code of 2002.