A usufruct of a property established to harm one of the spouses may be the subject of division of the estate. The division of the real right of usufruct of a property may be admitted, exceptionally, in cases in which this institute is used with the manifest purpose of harming a spouse’s marital half-share (meação).
With this understanding, the Third Panel of the Superior Court of Justice (STJ) denied the appeal of a former spouse who sought to set aside a decision that permitted the division of the usufruct over a property.
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In the case analyzed by the justices, after the petition for divorce, the claimant requested the division of the real right of usufruct. At first instance, the division of the asset itself was ordered, in the proportion of 50% to each.
The state court reformed the judgment to permit the division of the usufruct right, and not of the ownership of the asset. According to the reporting justice in the case at the STJ, Justice Marco Aurélio Bellizze, the conclusion of the court of origin was correct.
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“The understanding adopted by the court of origin was correct in reforming the judgment which, departing from the request and the cause of action delimited in the initial petition, decreed the division of the property itself. The underlying action for recognition and dissolution of a stable union, of divorce with division of property, as can be seen, does not serve to undermine the lawfulness of the related legal transaction,” he stated.
Usufruct of a property – simulation
According to the court of origin, still during the stable union, there was a maneuver to harm the woman: the property was purchased by the partner and placed in the name of his minor children (offspring of current and prior relationships), with him himself listed as the lifelong usufructuary of the asset.
For Justice Bellizze, the distorted use of the institute of usufruct may not harm the party’s right to the marital half-share of the asset acquired during the stable union:
“It follows, therefore, that the non-transferability of the usufruct may not prevail over the distorted use of the institute, as occurred in this case, in which the appellant, during the stable union, used assets forming part of the couple’s community of property in order, through interposed persons—in this case, his minor children (availing himself of the power of representation)—to establish the real right of usufruct for his exclusive benefit.”
The reporting justice emphasized that, “once it is recognized that both are holders of the real right of usufruct, and as the simultaneous exercise of the right is not feasible, it is entirely possible to assign the property, for consideration, to a third party (e.g., a rental agreement), whose remuneration must be split, in equal portions, between the former spouses. Alternatively, in the event that only one of the usufructuaries makes use of the asset, the path of indemnification opens to the one who is deprived of the enjoyment of the thing, such compensation being possible through the payment of an amount corresponding to half of the estimated rental value of the property. In any event, the expenses of the property must be borne by the two usufructuaries.”
The number of this case is not disclosed due to judicial secrecy.
Source: STJ
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