A imposição legal do regime da comunhão de adquiridos na união de facto em Moçambique – um factor limitante da autonomia privada

Abstract

This paper analyzes the legal imposition of the community of acquired property regime on de facto unions duly registered in Mozambique, highlighting it as a limitation to the principle of private autonomy. The study is grounded in the evolution of Mozambican legislation, from the introduction of de facto unions by Law No. 10/2004, of 25 August, to the current Family Law, enacted through Law No. 22/2019, of 11 December, with particular focus on the lack of freedom afforded to de facto partners in choosing their matrimonial property regime. Although Family Law is predominantly governed by mandatory provisions, this research contends that the automatic imposition of the community of property regime is at odds with the foundations of contractual freedom, especially in relation to patrimonial matters. Through a comparative legal analysis, the paper explores the legal systems of countries with frameworks akin to Mozambique’s, namely Angola, Brazil, GuineaBissau, and the Republic of Cabo Verde. These jurisdictions provide, to varying degrees, the possibility for partners in de facto unions to choose their property regime, thereby offering alternative approaches that could inform prospective legal reforms in Mozambique. The study seeks to foster critical reflection on the current legal framework and advocate for greater normative flexibility that accommodates increased private autonomy within de facto unions.