O (des)amparo previdenciário para componentes de famílias poliamorosas no contexto da pensão por morte

Abstract

Advances in social dynamics usually show the Law‟s stagnation compared to them. This is no different when it comes to family structures that can be considered protected by the legislation, thus being challenging the polyamorous perspective, specially regarding social security regulations in the context of the death benefit. This occurs due to the plurality of individuals that are in a position of mutual and simultaneous loving partnership, therefore creating questions about social security‟s possible protection to the death, as the dependents list is adamant. Thus, the following study aims to answer whether it is possible to grant the death benefit in cases of polyamorous families, based on the application of constitutional principles. That being said, it was aimed to verify if Brazil‟s legal order, especially the constitutional principles, the 8.213/1991 Act, and case law guidance, in accordance to the judgment issued by the Federal Regional Court of the 4th Region (FRC4) in the Class Action Suit 2000.71.00.009347-0 and the Supreme Court‟s decision on the Topic 526 of general repercussion, admits the possibility of granting the death benefit for polyamorous families. Besides that, specifically, it was aimed to examine the legal evolution of the concept of family; to verify which constitutional principles and case law fundamentals from the FRC4 can be linked to the defense of polyamorous families‟ members‟ interests; to analyze the social security benefit and its requisites; and to identify the arguments used in the Supreme Court‟s decision on the Topic 526 of general repercussion. In order to do so, the dialectical approach method was used, from which were shown favorable and adverse arguments regarding the controversy, targeting to instigate the debate about the theme. The historical procedure method was used to examine the development of the concept of family and of the death benefit. Additionally, the comparative method was applied to verify common and divergent understandings between case law and well-established legislation concerning the problem to be solved. The monographic method was also utilized so that the aspects were analyzed more thoroughly. Research techniques used in the study were indirect documental analysis of primary sources, such as social security legislation, the Federal Constitution of 1988, the Civil Code, and the Supreme Court‟s and the Federal Regional Court of the 4th Region‟s case law, alongside with bibliographical research in books and papers, aiming an impartial and extensive study of the theme. Finally, the conclusion revealed legal difficulties faced in polyamorous families‟ contexts, mainly due to opposing case law. However, the importance of encouraging the debate was highlighted, so that the matter is more disseminated, and plurality is more inserted in the legal order.