The weakening of private autonomy in family Law after the judgment in the extraordinary appeal 1.167.478/RJ

Abstract

The research aims to analyze the end of the institute of judicial separation and its effect in relation to the principle of private autonomy in family law. After the enactment of Constitutional Amendment No. 66, which amended Article 226, § 6 of the Federal Constitution and made it easier to break the marriage bond in Brazil by divorce, regardless of prior separation, there was a real debate in doctrine and jurisprudence about the permanence of judicial separation and its limits in our system. Since 1977, our Family Law has undergone significant transformations. From an anti-divorce system, prior to Constitutional Amendment 9 of 1977, we have moved on to a full divorce system that allows marriage and divorce to take place on the same day. The enactment of Constitutional Amendment 66/2010, despite demonstrating the strengthening of private autonomy in family law, brought about a heated debate in doctrine and in the courts about whether or not to maintain judicial separation in our country, which was resolved in November 2023 by the STF in Extraordinary Appeal 1.167.478 / RJ, paradigm of theme 1053, establishing the disappearance of judicial separation in Brazil as an autonomous institute. It concludes that the end of judicial separation as an autonomous institute undermines private autonomy in the family system. The method used is hermeneutic, based on an analysis of legislation, doctrine and case law.