The (im)possibility of the weakening of socio-affective filiation in the face of the break-up of parent-child cohabitation

Abstract

The purpose of this research is to analyze socio-affective filiation and the possibility of its deconstruction after the break-up of cohabitation between parents and children. By enshrining full equality in family relations, the 1988 Federal Constitution brought about a veritable revolution in family law. With regard to filiation, there was a clear and widespread differentiation between children born of marriage, the only family model allowed under the law until then, and children born out of wedlock. The traditional terms were: legitimate child and illegitimate child. This anti-union treatment was outlawed by the Magna Carta of 1988, which, in its article 227, § 6, expressly states that "children, whether or not born of wedlock, or by adoption, shall have the same rights and qualifications, and any discriminatory designations relating to filiation shall be prohibited." From then on, the expression "a child is a child" was repeated in legal circles, so that a consanguineous child could not have more rights than an adopted or socio-affective child. However, in Resp. 1.741.849/SP, of 2020, there is a clear distinction between socio-affective and natural filiation which, in theory, would be unconstitutional. It concludes that the possibility of deconstituting the bond of kinship in the event of socio-affective filiation, after the parents and children have broken up, is unconstitutional, as it treats natural children differently from socio-affective children. The method used is hermeneutic, based on an analysis of legislation, doctrine and case law.