In a recent decision, the Court of the 3rd Family and Succession Division of the Santo Amaro Regional Forum held that, in order to change the property regime governing a stable union, the express and formal manifestation of the interested parties is required, by means of the granting of a deed of stable union before the competent notary’s office.
Understand the case
It is well established that, during the existence of a stable union—recognized by civil legislation as a family entity constituted “between a man and a woman, configured in public, continuous and lasting cohabitation and established with the objective of forming a family”, save for a written contract between the partners, the regime of partial community of property applies, as determined by article 1,725 of the Civil Code.
Under such regime, the assets acquired by the couple during the union are shared in common, that is, in the event of an eventual dissolution of the union, they will be divided equally between the partners, regardless of who contributed to their acquisition. The legislation provides some exceptions to this rule, establishing that the following will not form part of the estate subject to an eventual division: those assets and amounts that each partner possessed at the beginning of the relationship, assets received by inheritance or donation, obligations prior to the marriage, assets acquired with amounts belonging exclusively to one of the partners, assets for personal and professional use, and those arising from unlawful acts (except in the case of reversion for the benefit of the couple).
In the case under trial, however, when beginning their relationship in 2009, the partners formalized a public deed of stable union establishing that, during the union, the regime of total separation of property would be in force. That is, unlike the regime described in the previous paragraph, under this one, the assets would remain under the exclusive administration of each of the partners, who could freely dispose of them or encumber them with property liens.
It so happens that the relationship between the parties ended in mid-2016, having been rekindled some years later, and having lasted, in this latter period, for approximately three (3) years.
The crux of the matter hinged on the fact that the parties had lived in a stable union for two distinct periods of time, having formalized the regime that would govern it by means of a public deed before the Notary’s office only during the first period of the union.
Based solely on the absence of specific formalization for the period of the second union, the Plaintiff requested in her lawsuit the recognition that, in each of the periods, a different property regime would have been in force. That is, first the regime of total separation of property would have governed the union, as set forth in the deed formalized by the parties, and, in the second period, the partial community would have been in force, given that this is the regime commonly adopted and determined by the legislation in the absence of any different provision by the parties.
However, in the deed of stable union registered at the Notary’s office, it was expressly stated that the regime of separation of property would be in force from the date of signature, applicable both to the assets that each of the grantors already possessed and to all those they might come to possess subsequently, while such deed remained in force. This implies that, for the deed to cease governing the relationship between the parties, it would have to be expressly rescinded or terminated by mutual agreement.
And, in the course of the proceedings, there was not even any manifestation by the parties seeking to change any clause governing the union, especially the property regime, such that the Judge held that the regime of total separation of property was in force for both periods. Consequently, the request for the division of the assets acquired during the existence of the second union was denied by the Court, with such assets remaining in the exclusive estate of the party who acquired them.
Cases such as these reveal the importance of formalizing the most diverse types of romantic relationships of today. Since, although they do not require the formal registration of their existence, their formalization facilitates proof of the union before third parties, ensuring the division of assets in the event of the end of the relationship, death, or even to enable the inclusion of the partner in health plans, life insurance, etc., since the public deed is signed by a notary who is endowed with public faith, dispensing with the presentation of other types of proof of the union.
By Lassori Advogados (Glauber Ortolan and Bruna Paifer)
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