Análise crítica da limitação dos fundamentos para o divórcio litigioso no contexto do ordenamento jurídico Moçambicano

Abstract

Divorce, as a legal entity, constitutes one of the forms of dissolution of the marital bond and can be consensual or contentious. Therefore, this research paper aims to criticize the limited grounds for contentious divorce within the Mozambican legal system. The starting point is that, although the Constitution of the Republic enshrines the principle of human dignity and individual freedom as fundamental principles, Article 119 of the Constitution recognizes the family as the foundation of society, posing a dual challenge: protecting the family institution and ensuring that individuals freely exercise their right to self-determination, including in marital relationships. Current legislation, particularly Article 186 of the Family Law, imposes strict grounds for obtaining a contested divorce. This can, in practice, make it impossible to dissolve marriages whose cohabitation has ceased to exist but which, however, do not meet the legal requirements. This constitutes a profound and immeasurable legal restriction, from the perspective of the principle of individual liberty. Thus, this legal framework represents an obstacle to the full exercise of the spouses' autonomy of will, creating tensions between fundamental rights and legislative rigidity. This work therefore aims to shed light on the limitations of current legislation, assess its compatibility with the fundamental rights enshrined in the Constitution, and propose legislative alternatives that better align with the principles of freedom and human dignity within family relationships.