Contratualização do direito de família: reflexões sobre as cláusulas existenciais em contratos familiares

Abstract

The present thesis addresses the possible existential clauses in family contracts, encouraged by the ongoing phenomenon of the contractualization of family law. This contemporary trend finds its foundation in the increasing influence of private autonomy within family relations, intensified by the process of the constitutionalization of Civil Law and the perceived crisis of the codified Brazilian family law system. Within this framework, the research aims to examine whether the Brazilian legal order admits the contractualization of family law, particularly with regard to the establishment of existential clauses in family contracts. Those clauses establish rights and duties within a family relationship, governing aspects of human personality and ways of “being” or “existing” within the family context. They may define rules concerning, for instance, private life, sexuality, conjugal duties, personal conduct, lifestyle choices of the partners, and even parental behavior toward their children. The central hypothesis of this thesis is that the negotiation of such clauses is legally permissible, provided that certain parameters grounded in freedom and solidarity are duly observed. As its general objective, the study seeks to explore the boundaries and intersections between Family Law and Contract Law, qualitatively assessing the extent to which private autonomy, a foundational principle of Private Law, allows for the self-regulation of existential legal situations within family relationships. To achieve this goal, it was necessary to revisit the concepts and dogmas of traditional Civil Law, particularly those perpetuated by textbook-based scholarship that has profoundly shaped the formation of Brazilian legal thought. In this point of view, the study proposes a reinterpretation of general clauses such as public order, morality, and good customs, with the aim of assessing their scope in restricting both family autonomy and existential autonomy. The research further examines the influence of religiosity on the development of Brazilian family law dogmatics and, more recently, the impact of constitutionalization and repersonalization on the processes of privatization and contractualization of family relations, movements that have fostered the emergence of a minimalist family law grounded in the freedom of personal development and the individual’s right to self-determination. It was also necessary to reconsider the very concept of contract, still deeply rooted in patrimonial notions, in order to confirm the doctrinal and terminological adequacy of the expression family contracts. Several examples of existential clauses in family contracts were analyzed, with particular emphasis on their validity, ultimately seeking to propose parameters for the contractualization of such clauses founded upon the constitutional principles of freedom and solidarity. The research employs a civil-constitutional methodology alongside the dialectical method, proceeding through a movement of thesis and antithesis in order to critically reflect upon the potential risks arising from a possible (hyper)contractualization of family relations.