YEAR 2016

ISBN 9789724064581

Autonomy and Heteronomy in Family Law and Succession Law

Helena Mota, Maria Raquel Guimarães (coords.)


Family law; inheritance law; autonomy; heteronomy.


Proceedings of the International Congress Autonomy and heteronomy in family law and inheritance law
Faculty of Law of the University of Porto, 2 and 3 October 2015


Table of contents

Currently, in family and succession law, it does not seem to me that there is a more important theme than this one that the Faculty of Law (UP) chose to organise its Congress - autonomy and heteronomy or, in other words, the balance between individual wishes and State interests.
There were times when it was debated whether the will of the spouses was sufficient to legitimise a life together, and the responses ranged from the one that imposed a decisive participation of the Church, or of the State, or even of several members of their families whose consent had to be asked. Today, this subject matters less because, increasingly, there are those who think that the issue is purely private and that legitimation is no longer accurate.
There were times when it was thought that public authorities should impose on spouses a fixed set of rights and duties that would guarantee a harmonious life for themselves and for the society. Today, it is understood that no one better than the two stakeholders should define how they should and can contribute to the common project.
There were times when it seemed essential to build a sophisticated patrimonial regime to regulate the couple's life, although with a small margin for freedom of choice. Today, when the face of wealth has changed and the two spouses want to be economic actors, it can be assumed that the absence of special rules for the couple's assets will have its opportunity.
There were times when the descendants status depended on the existence of a marriage between the parents or on the will of the king. Then came the idea of ​​legal equality between all descendants, and Biology comforted this claim. But, shortly thereafter, Biology seems to be in crisis as a defining criterion for the descendants status, in favor of individual will, care, love.
There were times when the family reproduced the hierarchical organisation of the kingdom, and the subjects had no reason to cherish their own aspirations. Today, the emancipatory movement of children and young people has gone so far as to create heavy responsibilities for parents without giving them adequate means to carry them out.
There were times when the regime for the family transmission of heritage seemed to be written in the stars and continued its undisturbed function. Today, the productive system has generated different ways of family life, and the legitimate succession, once indisputable, demands new attention.
Does this mean that the State has left people to enjoy their great autonomy ... given to themselves and paying the corresponding price? Not really. Public authorities may progressively withdraw themselves from the civil code but reformulate their intervention and begin to appear in other regulatory instruments, with new clothes, especially to protect the weakest - children and the elderly.
This Congress was about all this and it showed that FDUP is attentive to the social and legal movements of our time, to give what is expected of it. This book is one of those that open our heads and show the most exquisite beauty of Law.

Guilherme de Oliveira