THE THE JUDICIAL RECOGNITION OF SOCIO-AFFECTIVE PATERNITY IN THE RELATIONSHIPS OF PADRASTIO AND MADRASTIO AND THE VIOLATION OF PRIVATE AND EXISTENTIAL AUTONOMY

Abstract

This article reflects on the evolution of the family that culminated in the recomposed family and the recognition of postmortemsocio-affective affiliation. In the past, under the eyes of the Brazilian Civil Code of 1916, the family was defined as the union between a man and a woman who were linked to marriage and the children arising from it, enshrining the bond of consanguinity. With the advent of the Constitution of 1988, however, the family undergoes a reinterpretation of its meaning, in which the following stand out: (1) all children become equal, regardless of their origin; (2) divorce is permitted and facilitated. With the Federal Constitution of 1988, affection began to be valued in family relationships. The 21st century family is characterized by the possibility of reinventing itself and going beyond established norms. The evolution of customs and, consequently, of Family Law is so fast that legal definitions need constant changes. In addition, the Constitution of 1988, recognized the Common-law marriage and the single-parent family as a family entity, which removed the monopoly of marriage for the formation of the family, as well as recognized the same importance of other forms of family entities. In the midst of these innovations, the recomposed family has been recognized. With the family recomposed, the bond between the stepmothers or stepfathers and their stepchildren began to be questioned, when there was no movement of will (autonomy of the will/private and existential autonomy) for the recognition of the paternal filial relationship. This situation becomes even more tense when there is a questioning of the recognition of post-mortem socio-affective paternity to the detriment of the existential and private autonomy of the stepfather, stepmother and the underage and legally represented stepson.