Only those who are about to get married know how intense the anxiety is and the number of legal doubts that appear along with the date of the big day, like who should be sought, what are the necessary documents and, mainly, what civil communion regime fits in the formalization of the union.
If the last question left you confused, you need to understand a little more about the civil communion of marriage to decide which civil communion regime the couple intends to commit to and how their separation of assets will be.
This is a very important decision, as it can define what the couple’s pre-nuptial agreement will be like and the rights of both regarding the acquisition of cars, boats, real estate and other high-value goods. In this post, you will learn a little more about the main civil communion regimes. Follow us!
Civil communion regime: partial communion of goods
This is the most common regime adopted today, since it dispenses with the deed of a prenuptial agreement and still preserves the individual assets that each spouse already had before marriage.
This modality provides that the contracting of financing, debts and assets after the union is the right of both. The only exception to this rule is inheritance or exclusive donations, directed only to one of the members.
Given this condition, the value of the property purchased or financed becomes a property divided between the two (50% of the value belongs to one spouse, and 50% belongs to the other). In divorce cases, the most common is that the house is sold and the value obtained is shared equally after the separation of assets.
Another alternative is that one of the members of the couple continues to own the property (living alone) while the other pays the part that is due, taking into account what has already been disbursed before the end of the marriage.
The civil communion that provides for the partial division of assets is often considered by entrepreneurs or business owners to protect their own business since they will not need to give up half of their commercial assets in case of separation.
Universal communion of goods or total communion of goods
Spouses who adopt this civil communion regime need to attend a notary public to write the prenuptial pact before entering the rotary union process.
However, marriages formalized before December 1977 dispensed with this agreement, given that it was the common regime of the time. It was only after this period that the divorce law was formalized, and other types of regimes were created.
In universal communion, all goods acquired before and during the wedding will be shared property. Therefore, each one has the right to half of everything the other has (including donations and inheritances) regardless of the moment of acquisition.
It is recommended that investments and financial planning of the family be made in a transparent and friendly manner in this modality, since both spouses are responsible for the management of assets and participate in all purchase and sale decisions with their signature.
Total separation of goods or universal separation of goods
In this type of regime, married couples will have free management over their assets, that is, they will be able to make purchases or sales without the consent of their spouses, except in cases in which they make joint acquisitions (such as a vehicle or the first property ). Even so, the bride and groom may have different percentages in these acquisitions.
Some actions and most details regarding the division of assets must be elaborated and described in the pre-nuptial agreement, which is often required in this type of regime.
However, the text of the law can give scope for more than one interpretation and this can change the way lawyers and clients decide to fight for their economic rights.
In this case, what the lawyers call “jurisprudence” comes into play, that is, the tendency to judge a case considering the way in which similar cases have been tried previously.
Recently, a wife filed a lawsuit against her husband to obtain part of the property, claiming that they had acquired the property together. The São Paulo Justice understood that her request was fair, even though the couple had married by opting for the regime of total separation of assets and, the property object of the complaint, was in the name of her husband.
However, Minister Marco Aurélio Buzzi, of the Supreme Court of Justice (STJ) did not agree with the decision of the previous instance. The magistrate affirmed that the couple had signed, by means of public deed, the intention of being adherents of the regime of total separation of assets.
Therefore, even if a person wishes to resort to a judicial process to reverse compliance with the sharing regime adopted at the time of the marriage, the chances of success in this endeavor are small, since the courts have respected what is signed in the deed .
Final separation (or participation) of assets
Here is another type of regime that also requires the prenuptial agreement. To simplify this explanation, we can affirm that this type of civil communion behaves in a similar way to the separation of assets, since each spouse has the right to the free administration of his / her possessions and responsibility for the debts acquired individually.
Thus, both do not need the signature of each other to carry out acquisitions or sales of real estate or goods, however, in the event of the dissolution of the marriage, this regime will take on the exact same character as that of the partial civil communion of goods, that is, everything that was acquired by either spouse will be subject to future division.
In this case, only the assets acquired during the wedding will be divided – which may or may not be the case for the property.
The final share of the assets differs somewhat from the partial communion of assets in that it provides a little more freedom for the spouses’ financial planning, as well as guaranteeing autonomy and individual responsibility for the obligations contracted during the marriage.
Mandatory separation of assets or legal separation
This regime, as the name implies, works in a similar way to the universal separation of assets, but it is mandatory, today, for some cases contemplated in article 1,641 of the New Civil Code.
Therefore, the bride and groom will not be able to choose the regime of goods they prefer when they fall under the following conditions:
- grooms over 70 years old;
- underage grooms;
- widowers with children who have not taken the inventory of the deceased person or have not yet guaranteed sharing to the heir;
- widows or women with a broken/annulled marriage up to ten months after the dissolution of the conjugal partnership or the beginning of widowhood;
- divorced without sharing the assets of the ex-couple decided or approved;
- tutors or trustees and their descendants (brothers, ancestors, brothers-in-law or nephews), while the guardianship or trustee is not over.
In some cases, these situations may be disregarded by law if the couple can prove that they can choose another property regime, without causing damage to third parties. In any case, the mandatory separation of assets does not require a prenuptial agreement.
Cohabiting in a stable union
The stable union is defined by the continuous, lasting and public coexistence of the companions and it does not necessarily happen through its own deed or matrimonial intentions.
However, in cases where cohabitants declare themselves in a stable union and do not do so by means of a deed, the same concept of the partial communion of goods regime is in force, according to the discipline of article 1.725 of the Civil Code. Therefore, both are responsible for the management of their own assets.
If they decide to formalize the union in writing, the spouses will be able to define the property regime that they decided to adopt in the act of drawing up the public deed of stable union.
The prenuptial agreement, as well as the pact that defines which civil communion will be chosen in the stable union, must be registered with the real estate registry office of the city where the bride and groom will obtain the first house or apartment.
It is important to emphasize that the stable union does not require a minimum period of time for living together to be formalized and also does not require that the partners have or cohabit the same household, just being able to start a family.
All types of civil communion can be modified after marriage through a court order, as long as both spouses agree. Even so, the bride and groom must always research and analyze the option chosen so that the patrimonial issues are not a problem that hinders the quality of life of neither.
Choosing the civil communion regime
People often avoid financial matters with those they love. This occurs at the time of making a will, at the time of an inventory and at the time of choosing the regime of the communion of goods.
It shouldn’t be like that, as it means letting important decisions be made when tempers are on the surface. Legal fights when sharing assets are common because the parties do not understand what, in fact, belongs to them. This could be avoided with frank conversation at the beginning of the relationship.
In addition, legal disputes generate a financial loss, since they require the hiring of lawyers. When the process drags on, reaching higher levels, as in the case mentioned above, the costs increase a lot.
Another disadvantage of the lack of communication at the beginning of the relationship is the expenses generated by the property. Imagine that a property that is being disputed would have been bought by the couple to be rented.
As long as he is the subject of a dispute, he will continue to generate expenses and the couple may have to pay them with their own funds, as the rent money may be frozen in a bank account until there is a decision on the sharing of the property.
As we have seen, the financial consequences of the lack of a civil communion regime go far beyond fights and unpleasant moments. There is loss and financial insecurity. So, now that you know the differences between these regimes, talk to your spouse to ensure that these risks do not occur to you.