After filing a divorce action, a woman requested the setting of rent for the former husband’s exclusive use of the couple’s sole property. The state Court of Justice held that the indemnification was unfeasible. According to the judgment, “as long as the partition of the assets belonging to both spouses or former spouses—which remain in a state of joint ownership (mancomunhão)—has not been carried out, it is not appropriate to set indemnification or rent in favor of the party who does not enjoy them.” However, at the Superior Court of Justice (STJ), the decision was reversed.
According to the reporting justice, Justice Raul Araújo, once the couple’s judicial separation has been ratified, the joint ownership (mancomunhão) that previously existed between the former spouses is transformed into a co-ownership (condomínio), governed by the common rules of co-ownership, which admits indemnification.
“Allowing indemnification before the partition has the merit of preventing the effecting of the partition from being postponed for years on end, relegating to an uncertain future the end of the state of permanent litigation that may exist between the former spouses, or even deepening this conflict, with presumable adverse consequences for any offspring,” the justice emphasized.
Raul Araújo noted, however, that recognition of the right to indemnification requires that the share due to each spouse has been defined by any unequivocal means. He further added that this is not an automatic right, and that the particularities of the specific case must be analyzed by the lower instances.
“It is the responsibility of the ordinary instances to determine which is the weaker party in the dispute deserving of due protection; who is procrastinating the effecting of the partition and who, therefore, must suffer the adverse consequences of their acts; whether the payment of indemnification or the exclusive use of the asset represents the provision of support (alimony) in kind, etc.,” the reporting justice explained.
Rent and support – The justice also weighed in on the indemnification for exclusive use of the asset by the support provider. According to him, the setting of the rent may influence the amount of the support payment, since it affects the income of the obligor, and the obligations must be considered reciprocally.
In the case examined, the rent amount will be determined in liquidation proceedings, in the sum corresponding to 50% of the monthly market rental value of the property, less the maintenance expenses of the asset, including applicable taxes, and will be paid from the date of awareness of the request. The number of this case is not disclosed due to judicial secrecy.
(source: STJ)
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