A afetividade como princípio orientador das famílias: dialogando monogamia e poliamor

Abstract

Placing affection as a central element in Brazilian Family Law means understanding the possibility of flexibilizing certain dogmas rooted in society in favor of greater freedom for individuals to exercise their autonomy to constitute a family. A study is needed that discusses the growing importance of affectivity in the Law of the Families with the still outstanding position occupied by the monogamy in the juridical order. The objective is to find possibilities of conciliation in coexistence in the same society, of monogamy and of the practice of responsible non-monogamy, through polyactivity, through the use of affectivity as guiding vector. The methodology for the development of this dissertation is qualitative in nature; In this way, the following research seeks to interpret the importance of affectivity as a constitutional principle regarding the recognition of family entities founded on the exercise of responsible non-monogamy, such as polyactivity. The research procedure applies the legal-prospective typology, exploring premises and conditions related to the subject, in order to verify the reality that permeates the option for the coexistence in poliafetividade in Brazil. When analyzing the legal status of monogamy in the Brazilian legal system after the Federal Constitution of 1988, it was concluded that it cannot be attributed to nature of principle and should be understood as a characteristic of long duration, without the condition of making legal recognition impossible of non-monogamous relations. On the other hand, when investigating the apprehension of the affectivity in Brazil, it was concluded that it has a juridical nature of implicit constitutional principle, being denominated, more specifically, of principle of objective juridical affectivity. As far as poliafetividade is concerned, it is concluded that it does not deny the existence of a monogamous dogma, majority, but that presents itself as a possibility of alternative choice, based on the exercise of the private autonomy of constituting a family; being able to state intervention in the extension of family rights, but not of restricting the possibilities of organization. The mark of Family Law must be affection and inclusion, not prejudice and regression. In times of the rise of conservatism, one cannot keep silent or escape the struggle for the rights of the least protected, and it is not acceptable that the State does not recognize the reality of families that do not conform to the monogamous standard, denying them basic family rights.