Article published by Conjur. By Lina Irano Friestino
In October 2025, the Superior Court of Justice (STJ), in deciding Special Appeal No. 2,195,589/GO, rekindled an important debate on the extent of liabilities within marriage. The 3rd Panel of the STJ recognized that the debtor’s spouse may be included as a defendant in the enforcement of an extrajudicial instrument, even if such spouse did not sign the contract that gave rise to the debt, provided that the debt was incurred during the marriage under the regime of partial community of property.
Justice Nancy Andrighi, the reporting justice for the case, in interpreting Articles 1,643 and 1,644 of the Civil Code, concluded that, when debts are incurred for the benefit of the household economy, they bind both spouses, since there is a presumption of consent between them. In other words, when the obligation arises within the marriage and is presumed to be directed toward common life, it is understood to reach the couple as a family unit.
In light of this presumption, the STJ reversed the understanding of the lower courts. However, there is a caveat in the decision: being included in the proceeding does not mean being automatically ordered to pay the entire debt. This is because the inclusion of the spouse in the proceeding serves so that he or she may be summoned and, upon participating in the proceeding, has the right to prove that the debt did not benefit the family or that certain assets are not shared under the adopted property regime.
This point was reinforced by the reporting justice when clarifying that standing to appear as a defendant is not to be confused with patrimonial liability.
The analysis of any attachment of the spouse’s assets remains the responsibility of the court of origin which, observing the adversarial principle, will assess which assets may or may not be answerable for the debt. Thus, the decision broadens the possibility of the creditor reaching assets that form part of the common estate but, at the same time, ensures the spouse the opportunity to ward off the constraint when demonstrating that there was no family benefit.
The judgment also alters the traditional logic of the burden of proof, since the court understood that the presumption of common effort applies to a marriage celebrated under the regime of partial community of property. Therefore, it will be incumbent upon the spouse included in the action to prove that the obligation assumed by the creditor spouse was exclusively personal and unrelated to the household economy.
Shared risks
The STJ’s decision in REsp 2,195,589/GO reinforces something that, deep down, was already written into the logic of the property regime: marrying under partial community of property means sharing not only dreams and assets, but also risks and responsibilities. In admitting the inclusion of the debtor’s spouse as a defendant in the enforcement proceeding, the Court recognized the solidarity that characterizes family debts, strengthens the effectiveness of debt collection, but, at the same time, preserves the adversarial principle, the right of defense, and the concrete possibility of warding off liability when the debt, in fact, bears no relation to the family entity.
In other words, for those who lend, the decision brings greater security. For those who are married, it brings a warning: debt is not an individual matter within a marriage governed by partial community of property; it is a family matter.
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