The Superior Court of Justice (STJ) reports that the benefit of a closed private pension is included among the exceptions set forth in Article 1,659, VII, of the Civil Code of 2002 and, therefore, is excluded from partition by virtue of the dissolution of a stable union – which, as a rule, observes the regime of partial community of assets.
The case involved a former companion whose request was denied by the Court, in view of her wish that the amount invested in a closed private pension by her former companion be partitioned with her.
According to the appellant’s allegations, the private pension is an optional contract of future investment, being one of the forms of accumulation of assets. For that reason, according to her, there would be no impediment to the withdrawal of the money at any time by the contracting party, even on account of its nature as a financial asset.
However, the reporting Justice, Justice Villas Bôas Cueva, did not accept the arguments. In his view, the funds allocated to the closed private pension form part of the set of income excluded from the community of assets provided for in Article 1,659, VII, of the CC/02.
According to the provision, pensions, half-pay, survivor’s pensions (montepios) and other similar income are excluded from the community. In the Justice’s view, the closed private pension fits within the concept of similar income, as it constitutes a kind of nest egg (pecúlio), a highly personal asset.
He further emphasized that “the benefit could not have been enjoyed during the interval of the relationship, considering that the respondent was not even retired during the relationship.”
Financial equilibrium – Cueva highlighted the importance of the financial and actuarial equilibrium of the pension plan, since to admit the possibility of early withdrawal of capitalized income, to the detriment of a body of participants and beneficiaries of a fund, would mean harming third parties in good faith who had previously signed the contract without such a provision.
The reporting Justice further explained that “such funds may not be raised or withdrawn at the whim of the participant, who must lose the employment relationship with the sponsor or fulfill the requirements to that end, under penalty of violating pension and statutory rules.”
Cueva further recorded that, should the marital regime be added to the calculation, there would be an imbalance of the system as a whole, “creating the requirement that the regulations and bylaws of the pension entities come to consider the property regime of the participants’ stable union or marriage in the actuarial calculation, which makes no sense whatsoever, since this does not concern funds that are typically of a labor nature, but rather a pension, the nature of which is distinct.”
(Source: STJ)
← Back to blog