O PAPEL DA VONTADE E DO AFETO PARA A NATUREZA JURÍDICA DA FILIAÇÃO CIVIL SOCIOAFETIVA

Abstract

Considering the recurrent question about love and will in the configuration of family ties, the objective is to situate such ideas internally to civil law, for the examination of their legal nature for the formatting of fictive kinship of filiation based on affection. The legal-dogmatic methodological aspect is privileged, in the context of Pontes de Miranda's theory of legal facts, as systematized by Marcos Bernardes de Mello. It is found that fictive kinship of filiation based on affection can be legally understood as a bilateral existential legal transaction. The will makes up the core of the factual support. Love has its importance linked to the possession of the state of filiation, precisely regarding the attribute of treatment, qualifying itself as a completing element. Finally, without love, careful treatment does not lead to a mutual perception of fictive kinship of filiation based on affection. The absence of the will to form this kind of relationship implies its inexistence. The will and love can be proved by the behaviors that show them socially. Lastly, the bilateral nature of these transactions means that no one can be forced to submit to the exercise of the right to free family planning.