Under the matrimonial regime of conventional separation of property, written evidence (formal) is a fundamental requirement to demonstrate the existence of a de facto partnership, pursuant to article 987 of the Civil Code.
For the Third Panel of the Superior Court of Justice (STJ), where there is no proof of the corporate bond by means of documents, such as the partnership’s constitutive acts or acts of management or capital subscription, the separation of property provided for in the nuptial agreement formalized between the parties remains in effect.
The plaintiff in the action claimed that she actively contributed to the success of her ex-husband’s family businesses – consisting mainly of a restaurant – which is why she should be considered a de facto partner or owner of the enterprises. According to her, patrons identified her as the owner of the restaurant, without, however, having received any remuneration or profit from the partnership.
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In addition, she stated that her ex-husband, a federal civil servant, could not administer the partnership, and thus other persons formally appeared as partners.
Joint efforts
The ex-wife’s claim was dismissed at first instance, but the Court of Justice of the Federal District and Territories (TJDFT) held that the absence of articles of association does not prevent recognition of the existence of a de facto partnership formed between persons in a community of efforts toward the realization of a common good.
Although it recognized the couple’s separation of property regime, the TJDFT decided that it was necessary to prevent the unjust enrichment of one of the parties, such that, once the common effort in acquiring the assets was proven, it would be necessary to divide them.
Written evidence shows express interest
The rapporteur of the ex-husband’s appeal, Justice Villas Bôas Cueva, stated that, under the regime of conventional separation, community of property is not presumed. Any interest in commingling the assets – he added – must be express, and not presumed.
According to the Justice, even if one were to admit the possibility of persons married under the separation regime constituting, perhaps, a de facto partnership – since they are not prohibited from constituting a condominium –, this relationship would not arise simply from life in common, since mutual support is a relevant foundation of the relationship.
“It is self-evident that, in the absence of joint ownership, the will to jointly acquire the same asset or, as in the case at hand, to become partners in the same legal business should have been made explicit in a solemn manner, which did not occur” – the Justice stated.
Acts of management
The rapporteur also recalled that commercial results may be positive or negative, which is why it is presumed that whoever carries out the business activity must also assume the risks of the business. However, according to the Justice, there is no indication that the ex-wife made capital contributions or participated in the capital.
“In the case file there is no record of the practice of acts of management by the appellee nor of the rendering of accounts of amounts administered by her. Furthermore, the indispensable affectio societatis aimed at the joint exercise of economic activity or the sharing of results was not established, as required by article 981 of the Civil Code“, concluded the Justice in reinstating the judgment of dismissal.
Source: STJ
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