A sucessão do cônjuge sobrevivo no regime da separação de bens

Abstract

Property regime aim, in general, to regulate the patrimonial situation of the couple, allowing them to whether a particular property belongs to the husband, the wife or both. For this reason, three regimes of property prevail in Mozambican legal system, namely: the community of acquired regime, with legal provision in article 145 of the Law Family (LF), the general communion regime, with legal provision in article 155 of the LF and the separation property regime, with legal provision in article 158 of the LF, the latter being the object of our analysis.The separation of property regime is stipulated in the prenuptial agreement, which constitutes a previous instrument to the marriage celebration, in which the spouses enjoy the prerogative to express their will in relation to the patrimonial acquis, during and after the validity of marriage. The antenuptial convention, as the pillar of the manifestation of the will autonomy principle in the context of the Family Law, allows spouses to adopt the separation property regime. However, with the dissolution of the conjugal society, the will postulated by the spouses in the demeaned and discredited by the legislator succession, who makes the call of surviving spouse, regardless of the property regime adopted. For this reason, we bring to the debate some critical aspects, such as the discrepancy between the two branches of law that complement each other: Family Law and Inheritance Law, because as the legislator, in the context of the Family Law, grant spouses the right to choose the property relations, through the principle of autonomy of will, the succession legislator invalidates their will, thus violating the principle previously mentioned, which ultimately affects the unity of the legal system