12/22/2022
Article 1.725 of the Brazilian Civil Code (“CC”) establishes that, if the parties under a common law marriage do not expressly convene, in writing, the property regime to be adopted, the partial community property regime shall rule.
Therefore, are those who want to adopt a marital regime other than the partial community property simply required to execute the corresponding written agreement? Not exactly.
Those who believe to be fully protected upon execution of a common law marriage agreement, shall find themselves to be misguided.
This is due to the fact that, in October 2022, based on Article 1.725 of the CC (REsp 1.988.228), the Brazilian Superior Court of Justice (“STJ”) decided that, in order to produce effects against third parties, common law marriage agreements establishing the separation of property regime are required to be duly registered with the competent public notary.
Therefore, without due register, such agreements shall be enforceable only between the parties, producing effects upon third parties only as of the date of the corresponding register with the competent public notary.
The relevant STJ decision, which aims to safeguard third parties and potential creditors’ rights, triggers an alert to parties under a common law marriage that intend to protect their individual wealth upon adoption of the separation property regime.
