12/29/2020
The separation of assets regime provided for in Articles 1,641, 1,687 and 1,688 of the Brazilian Civil Code (“CC”), is defined as a regime by means of which each spouse maintains exclusive ownership and right to use and manage property acquired before and during the marriage.
This regime can be elected either by the Voluntary Separation of Property, provided for in Articles 1,687 and 1,688 of the CC, or by the Compulsory Separation of Property, provided for in Article 1,641 of the CC.
In order to adopt the regime of Voluntary Separation of Property, the execution of a prenuptial agreement is required, through which the spouses agree that their present and future assets will not communicate with each other. Thus, there will be no division of assets in the event of divorce. On the other hand, in case of death, the surviving spouse becomes heir and will be entitled to a portion of the assets left by the deceased.
The Compulsory Separation of Property regime is imposed by law, depending on certain circumstances, such as: if one of the spouses is over 70 years old, or under 18 years old; if one or both spouses have not divided assets due to a previous divorce or death of a previous spouse, among other situations.
Although the Compulsory Separation of Property regime was created to discourage marriages with the intent of unjust enrichment, this prohibition was considered as unconstitutional, since it would violate human dignity and free will.
Given these claims, the Federal Supreme Court (“STF”) issued, in 1964, Precedent No. 377, which provides that “in the regime of compulsory separation of property, assets acquired in the course of marriage belong to the couple”, in other words, the property acquired during the marriage must be equally divided between the spouses in case of divorce. On the other hand, those assets acquired previously belong exclusively to the one who acquired them.
It is worth noting that there are court precedents and doctrines which state that the common effort in the acquisition of assets must be proven to be divided. However, the final decision depends on the court’s interpretation and on the specific case.
In the event of death, the surviving spouse does not become heir if the deceased leaves descendants (Article 1,829, item I, of the CC). However, this rule may be altered if the court understands that the surviving spouse effectively contributed to the accumulation of assets during the marriage.
Despite the above scenario, couples that meet the requirements for the Compulsory Separation of Property regime may previously enter into a prenuptial agreement that expressly rules out the applicability of Precedent No. 377/1964. Therefore, rules of the Compulsory Separation shall directly apply, with an absolute separation of property, including in the event of death.
Coauthors: Maria Paula Meirelles Thomaz de Aquino and Marcelo Trussardi Paolini
