A efetivação material dos direitos fundamentais diante do reconhecimento da união estável homoafetiva

Abstract

The infraconstitutional legislation must comply with the principles and values brought by the Federal Constitution , which is the central pillar of the legal system of a State . Laws should not exclude any individual from the State protection , on the contrary, they must be applied so that they can focus on the largest possible number of factual situations in order to preserve the fundamental rights of citizens . The list of Article 226 , § 3 of the Federal Constitution of 1988 is illustrative and not exclusive of other formations that also require protection of the state to be recognized as a stable union. The interpretation of Article 1723 of the Civil Code in accordance with the aforementioned constitutional provision brought several benefits to homosexual couples in the sense that materially effected the fundamental right to freedom, equality and human dignity rights . With the inclusion of relationships between persons of the same sex in the concept of family , the conflict situations arising from these structures should be resolved within the family law , in which is predominant the principle of affection, not being relevant only issues of patrimonial order. The judgment of the Unconstitutionality Lawsuit Nº 4.,277 consisted of a judicial activism that led to the regulatory bodies of relatives who previously lived under the legal uncertainty due to lack of relevant legislation and the inertia of the Legislature. Thus, currently the homo-affective stable unions should receive the same legal treatment given to other stable unions , being applied to them all legislation dealing on this topic .