Usucapião familiar: avanço ou retrocesso legislativo? Análise dos requisitos para a verificação do instituto previsto no artigo 1240-A do Código Civil

Abstract

This paper addresses the concept of prescription, situating it in the course of time, and examines the various species of the institute exist in our legal system and its peculiar requirements, using the method historical and monographic. In this context, treats, mainly, the innovation legislative article 1240-A Civil Code, which was incorporated into legislation homeland through provisional measure n. 514/2010, of dubious constitutionality converted into law n. 12424/2011, giving rise to the familiar prescription. In this type of prescribing the spouse or partner acquires the right to usucapir the common good of the spouses in the event that the other consort abandons the home, met other legal requirements. The study aims to contextualize the new form of adverse possession, inserted at a time of severe housing crisis in the country and coming from the necessity of the right to housing. Therefore, throughout this work, there are some consequences of the introduction of this new type of adverse possession in legal force, taking into account certain values, such as the question of social justice, as well as questioning the inherent guilt the abandonment of the home. Finally, talks up through the dialectical method, about some of the many questions still unconsolidated materials in doctrine and jurisprudence regarding the changes brought about by legislative innovation, the object of his second chapter. It was concluded that, despite the legislative intent had scoped the noble purpose of increasing access to housing, protecting mainly women, the institution of family prescription, the way it was created, generates a disproportionate sanction sheet, contributes to making hasty decisions in a delicate field and allows, again, the interference of the State in affective families, representing a legislative setback.