Uniões paralelas e desamparo social: a (in)adequação do primado da monogamia em face ao Princípio Constitucional da Solidariedade

Abstract

The primacy of monogamy is a factor that has accompanied the brazilian legal system for a long time, with the main consequence being the non-recognition of family entities that do not fit the monogamous model, such as the parallel and the polyaffective relationships. However, the legal option to honor only monogamous relationships seems to create a space of marginalization and vulnerability that is not compatible with the current constitutional order, especially in counterpoint to the constitutional principle of solidarity. Thus, the main question to be studied can be summarized as follows: Is the primacy of monogamy legitimate, in a Democratic State of Law founded on the constitutional principle of solidarity, to serve as an obstacle to the recognition of non-monogamous families? In view with this questioning, the present research has as general objective to investigate the adequacy of the primacy of monogamy in the current constitutional order as an obstacle for the recognition of non-monogamous relationships from a perspective of solidarity, from the perspective that the primacy of monogamy would be an undemocratic form of imposition of a cultural pattern, for that, having as specific objectives: (i) to know the reasons and origins of monogamy and the conditions of its incorporation into the brazilian legal system; (ii) to analyze how the principle of solidarity relates to the ascension of monogamy as a structuring rule, and whether there is a adequacy relation between them or not; and (iii) evaluate the perspectives on the legal recognition of non-monogamous families in the brazilian legal system. Using the deductive method, and from a monographic approach, the result was that the elevation of monogamy to a family law structuring principle status is incompatible with the current constitutional order, insofar as, being par excellence a non-monogamous family entities marginalization mechanism, its essence is diametrically opposed to the content of democracy and in particular to the content of the principle of solidarity. The conclusion of the research is that the overcoming of the primacy of monogamy is a measure that imposes itself as a requirement for the construction of a humanizing civilizational project in family relationships, as well as for the complete emancipation of women, the main victim of its negative effects.