Privatizing Marriage

Abstract

The theme of this paper is the State intervention in the context of family relationships. The main goal was to delineate non-regulation spaces and set limits and rules for the State heteronomy. We were inspired by the proposals of the North American libertarian paternalism without neglecting its compatibility with the Brazilian constitutional principles, in order to set parameters for State intervention in the context of family relationships through default rules made compatible with the freedom of choice. Within the axis of marital and partnership relations, based on minimalist regulations when it comes to the terms of marital prenuptial, and pre civil partnership agreements, and on a critical review of marital duties, we proposed a greater freedom when it comes to people’s personal decisions. We concluded that, in this scope, the autonomy of the parties should be favored and, therefore, the State should intervene only to ensure the equality and dignity for those who decide to join in a familial relationship. A basic regulation towards the well-being – through the promotion of rights and protection of people in vulnerability – without eliminating freedom of choice is in line with the pluralism and the exercise of freedom shaped by family solidarity, in consonance with constitutional principles.