The Manifestation of Will for Civil Marriage by a Person with Intellectual or Mental Disability: An Interpretative and Systematic Analysis of the Respective Provisions of the Civil Code, the Statute and the Convention

Abstract

The purpose of this article is to verify how the Brazilian legal system defines the marriage celebration of intellectual or mental disabilities persons after the incorporation of the New York Convention on Persons with Disabilities and the Statute of Persons with Disabilities. Therefore, firstly, a brief incursion will be carried out to revisit the treatment given in Brazil to intellectual or mental disabilities persons, from the Civil Code of 1916 to the present. From there, will promote an analysis from a systematic interpretation of the provisions of the Brazilian Civil Code with the Statute of Persons with Disabilities and the Convention on the Rights of Persons with Disabilities to clarify what legal protection is given to people with disabilities in the act of civil marriage, as an existential right of the human person. The present research will also identify how the manifestation of will from the intellectual or mental disabilities persons is considered in existential acts, especially in the marriage act, and the restriction of the curator's performance to patrimonial and business acts, except as the spouse's attorney, except if it has been a prior expression of will before the notary public. For the development of this research, the method of approach to thinking adopted is deductive. As for its nature, it is classified as qualitative and, for this, the technique of literature review based on books and legislation is used.