The Real Right of the Surviving Spouse Over the House in the Light of the Constitutional Civil Law

Abstract

The theme versed in this article has as its main scope to analyze the right of the surviving spouse over the house in which the couple lived, owned by the deceased in the light of the right to housing and protection of the family, recommended by the Federal Constitution, article 1831 of the Civil Code, single paragraph of the 7th article, Law n. 9.278 from May 10, 1996, and fundamental framework applicable to the matter. The crucial question facing assumes that, while it is established that there is regulatory gap in the Civil Code, with respect to housing rights in the succession field of companions, it is essential to assert about the maintenance of that right either because it would still be in effective the control provided in the previous legislation which expressly analyzed the matter, or because it is a fundamental right. It is important to consider that our search for a response is guided by conviction and by the relentless pursuit of good reasons to defend the legitimacy of law as Bobbio advocates. On the other hand, it is worth highlighting that the article 1.831 of the Civil Code which expressly ensures the housing rights only to the surviving spouse, without, however, referring to stable relationships, cannot be interpreted as the pure and simple will of the legislator in order to exclude the right to housing mates, since if so, it would be done in a discriminatory, uneven and retrograde manner, and would deny the change occurred in the list of human rights throughout history. The methodology used for the preparation of the article is analytical, empirical and critical.