A INCONSTITUCIONALIDADE DA FORMA SUCESSÓRIA DOS COMPANHEIROS, PREVISTA NO ARTIGO 1.790 DO CÓDIGO CIVIL DE 2002.

Abstract

For preparation of this work we used the dialectical method and the structure is divided in three chapters. The study is about the stable union institute, analyzing its historical evolution from the Ancient Age, crossing the Roman Law, the Middle Ages and finally coming to Brazilian law, that prior to the enactment of the Federal Constitution of 1988 recognized the right of the companions through sparse laws, court decisions and case law precedents. However, with the advent of the 1988 Constitution, there was the explicit recognition of common-law marriage as worthy family entity of the State protection, being published in 1994 Law No. 8971 and later in 1996 the Law 9278 which regulated the alluded institute until the publication of the new Civil Code, Law 10.406 of January 10, 2002, which, in turn, introduced himself as a true legislative setback regarding the rights of colleagues to inheritance title, considering that the rule contained in Article 1790 of the said legal diploma you intended diverse succession of format and less than the spouse, despite the constitutional parity. Faced with such a violation of the principle of human dignity, the Federative Republic of Brazil ground of doctrine and jurisprudence forefront demonstrated against the referred legal provision and pointed out the unconstitutionality of Article 1790 of the Civil Code of 2002. Situation this that, after being brought to the attention of the Supreme Court is pending consideration and judgment by the Supreme Court.