(Ir)retroatividade do contrato de convivência:

tensão entre autonomia privada e interferência estatal

Abstract

This work focuses on the current understanding of Superior Court of Justice regarding the non-retroactivity of the patrimonial effects inherent to the adoption of a regime of separation of assets under a cohabitation contract (stable union). The aim is to analyze the legitimacy, coherence and admissibility of state interference in the private autonomy of citizens, given that there is still a doctrinal and jurisprudential discussion about the total equality between the two institutes, namely, marriage and stable union. Would it, therefore, be appropriate for the property regime to be retroactive due to the drawing up of the stable union contract, whether public or private? Would there be a violation of the principles of objective good faith and private autonomy of the parties due to the current jurisprudential understanding in force by the Superior Court? Having faced the case in accordance with the paradigm judgment handed down by the Court of the State of Santa Catarina, in a different sense to that issued by the Superior Court of Justice, it is highlighted that it is impossible to presume bad faith between the parties involved in the eventual retroactivity of the effects of a stable union contract.