A separação e o divórcio após a Emenda Constitucional n. 66/2010

Abstract

The present study aims to demonstrate how separation and divorce came to be regulated after the Constitutional Amendment n.66/2010. This study is justified by the fact that after the publishing of this constitutional alteration, a doctrinarian stream arose, claiming that the institution of separation, which dissolves the marital society, had been eradicated from the Brazilian system. Thus, only divorce would exist, which from then on would be the only choice for couples willing to end their marriage. In addition to that, this very doctrinarian stream, which appeared soon after the alteration in the constitutional text, also argues that guilt no longer had effects on separation or divorce. The study carried out for the production of this paper resorted to the General Theory of Law, to Constitutional law, to philosophy, to Foreign Law and to precedents. The impartial analysis of the established law demonstrated that the constitutional amendment n. 66/2010 altered the Brazilian system of separation and divorce, since it has extinguished the obligatory dual system and inserted the optional dual system, and no more than that. This is because the so called divorce hardness terms had been taken out of the Federal Constitution. Divorce used to be authorized only a year after judicial separation or two years after previous de facto separation. The Constitutional Amendment eliminated such terms, although the institution of separation continued existing, if couples do not want to extinguish their link. Moreover, the study carried out also aimed to demonstrate that guilt keeps on having effects on both separation and divorce as far as food, name and damage repair are concerned