The Ascertainment of Autonomy and the Law n. 13.145/15: Some Notes on the Marriage of Disabled Persons

Abstract

The present article aims to deal with the (im)possible prospect for mentally or intellectually disabled persons to get married in a legally valid way. The Law 13.146/15 (Statute of the disabled person) has put an end to the notion of “absolute incapacity” with the necessary exceptions for minors of age. In order to come to a consistent conclusion, it is necessary to analyze, historically, the role of the autonomy of will, the freedom of contract and the so-called “existential autonomy” which is a category introduced into the Brazilian legal order by the aforementioned Statute. This type of autonomy deals with the indispensable freedom of the person to dispose of the own body, thus taking into account the principle of human dignity as imbedded in the Brazilian Constitution of 1988. According to the principle of existential autonomy even absolutely incapable individuals must be allowed to get married, notwithstanding a lack of free and spontaneous consent. The New York Convention on the rights of disabled persons, however, on which the Statute was based, does not include such rights for absolutely incapable individuals. On the contrary, it requires the free and informed consent of the future spouse. The authors made use of the method of bibliographical review for the development of the text.