The choice of the marital regime is an important decision to be taken by a couple, before getting married, considering that its effects on the property of each of the spouses will be valid not only during marriage, but also in the event of separation or divorce, and, lastly, in the succession.
Depending on the adopted marital regime, one spouse’s wealth may, during marriage, be directly affected by debts of the other spouse. Additionally, in case of divorce or succession, one spouse may be entitled to half of the couple’s common assets, and inherit the assets solely held by the deceased (in equal proportion with the descendants, if any) or even inherit all of the assets left by the deceased.
Circumstances involving a couple’s life often change, and therefore an amendment to the originally contracted marriage regime may become an issue for the spouses’ reflection.
Fortunately, Article 1.639, 2nd paragraph, of the Brazilian Civil Code, expressly allows a couple to change their marital regime upon judicial authorization, provided that it is based on a reasonable request from both spouses, and that rights of third parties be duly observed.
Once the change is approved, the new regime should normally generate legal effects as of the date of the judicial authorization, precisely to preserve prior rights of third parties.
However, for the first time, the Superior Court of Justice (“STJ”) issued a decision stating that the change in the marital regime can be considered valid, retroactively, as of the date of the marriage, as long as it reflects the couple wishes and it does not cause any harm to creditors.
In the recent case under analysis, it had been requested the change from the separation of property regime to the community property regime, which is quite rare – a request in the opposite direction is, in fact, much more common.
In such lawsuit, the main reason for the STJ to recognize the retroactivity of the effects of the change of the marriage regime was based on the fact that, in this case, potential creditors would benefit from the retroactivity because it would become easier for them to recover their debts.
Therefore, it is interesting to note the amplitude that the higher courts can give to the analysis and interpretation of the law so as to adapt it to specific facts and claims. In the case under analysis, we deem that the interpretation turned out to be precise.
