Dulcinei Carneiro Ortiz
Lawyer at Marcos Martins Advogados
One of the most important aspects of marriage is, of course, the establishment of the property regime to be adopted by the spouses after it is celebrated and which, once fixed by law or chosen, will govern the property relations between husband and wife for the duration of the marriage.
In our country there are four property regimes available to spouses under the law: (i) partial community of property, (ii) separation of property (conventional or compulsory), (iii) universal community of property and (iv) final participation in the proceeds.
If the regime chosen by the couple is that of partial communion, when the marriage is registered, the chosen option will be written down and in the case of the other choices, it will be formalized by a public deed of prenuptial agreement.
The restriction on the principle of the free choice of property regime by the couple and, of course, its alteration, is laid down in article 1.641 of the Civil Code. According to this article, “the regime of separation of property is compulsory in the marriage of persons who contract it without observing the causes suspending the celebration of the marriage; of the person over seventy years of age and of all those who depend, to marry, on judicial supply”.
It should be noted that these are not the only regimes that can be adopted by the couple. Through a prenuptial agreement, they can stipulate their own particular regime that will govern their economic and property relations after the marriage, as long as this agreement does not violate the law, public order or the principles and duties of marriage.
Once the property regime has been chosen, in principle, it will be immutable and irrevocable, not only to guarantee the interests of the spouses but also those of third parties.
However, this immutability is not absolute and can be changed by judicial authorization (Art. 1.639, § 2, of the Civil Code), provided that the following legal requirements are also met: (i) request by both spouses; (ii) ) motivation of the claim; (iii) reservation of the rights of third parties; (iv) validity of the reasons invoked.
It follows from the first requirement that only the spouses are entitled to request a change in the property regime, which means that they cannot do so unilaterally. It is clear that the disagreement of one of them cannot be overcome by the judge.
In addition to the joint request, the law requires that the request be motivated, i.e. the mere expression of the will of the spouses is not enough; it must be based on reasons of fact and law. Although the law does not specify the grounds for changing the property regime, the reasons must be legitimate and must not go against the law, morality or good customs. It is important that the reasons and justifications stated in the application can convince the judge of the plausibility of the request.
The interests of the spouses themselves must be protected (no advantages for one spouse to the detriment of the other) and third parties must not be harmed, including by reducing any guarantees.
Finally, it is necessary to demonstrate that the grounds invoked are justified, by producing evidence of the alleged facts, especially documentary evidence, such as, for example, negative certificates from common, federal and labor court registries and protest registries, an appraisal of assets, etc. Testimonial and expert evidence is admissible.
The procedure in actions to change the property regime is one of voluntary jurisdiction (articles 1.103 to 1.111 of the CPC). All interested parties must be summoned, including known creditors named by the spouses in the petition and, if applicable, legal entities governed by public law. If the spouses are traders, with business establishments in several locations, it is advisable to serve a notice on unknown and unknown parties. The deadline for contesting the claim is 10 (ten) days.
The representative of the Public Prosecutor’s Office must intervene in the proceedings, due to the nature of the dispute and the public interest inherent in the intended change in the regulation of the spouses’ property rules.
The judgment authorizing the change in the property regime, once it has become final and unappealable, must be entered in the marriage register and, if applicable, registered in the relevant real estate folio. If the spouses are traders, it is necessary to file and register the judgment with the Public Registry of Commercial Companies (Junta Comercial), pursuant to the provisions of article 968, item I, of the Civil Code.[1] There is no need for it to be published, by public notice, in an official newspaper or place of wide circulation, in order to produce effects against third parties.[2]
One of the most controversial aspects in doctrine and jurisprudence relates to the initial term of the effects of the judgment authorizing the modification of the property regime: whether it is retroactive to the date of the marriage ( ex tunc effectiveness) or whether it takes effect from the final and unappealable decision ( ex nunc effectiveness).
There are opinions in both directions. For those who advocate ex nunc efficacy, i.e. the judgment only takes effect once it has become final and unappealable, the justification lies in the fact that the legal interests of the spouses and third parties at the time of the marriage must be preserved, in short, the effects of the perfect legal act must be respected. [3]
For those who take the opposite view ( ex tunc effectiveness), the retroactivity of the decision to the date of the marriage is a logical consequence of the change in the property regime.
LUIZ FELIPE BRASIL SANTOS, Judge of the Seventh Civil Chamber of the Court of Appeals of Rio Grande do Sul, expressed his opinion on the subject in his opinion on Appeal No. 70006423891[4], as follows:
[…] The Code does not specify whether the effects of the change will be “ex tunc” or “ ex nunc” between the spouses (because with regard to third parties who already have rights vis-à-vis the couple, it is certain that they will always be “ex nunc”, since their rights are safeguarded). In particular, I believe that if there is an option for any of the regimes that the code regulates, retroactivity is a logical consequence, because, for example, if the new regime is universal communion, it will only be UNIVERSAL if it implies communication of all the assets. It would be impossible to think of a universal communion that implied communication only of the assets acquired since the change. Likewise, if the new regime is absolute separation, the change will necessarily be retroactive, or the separation will not be absolute! What’s more, if the regime chosen now is absolute separation, it will be imperative to share the assets acquired until then, to be carried out concomitantly with the change in regime (I repeat: this sharing will have no effect on third parties). The same applies to the partial communion regime and even to the final contribution regime. However, in view of the principle of free stipulation (art.1.639, “caput”), if it is possible to stipulate a regime that is not regulated in the code, the change may, at the discretion of the spouses, take place as of the final and unappealable judgment, in which case we would have the creation of a regime that is not regulated in the CC.
(TJ-RS, APL: 70006423891, Rapporteur: Sérgio Fernando de Vasconcellos Chaves, Date of Judgment: 08/13/2003)
By way of conclusion, it seems to me that the best orientation is that which recognizes the ex tunc effect of the sentence – effective from the date of the celebration of the marriage, since retroactivity, in this case, will not harm the interests of third parties, because they are already legally protected (Art. 1.369, § 2, of the CC).
Furthermore, in the situations pointed out by the illustrious judge LUIZ FELIPE BRASIL SANTOS, it is necessary to carry out the division of assets, to be carried out concurrently with the change in the property regime, thus also safeguarding the property interests of the spouses, because the division will necessarily have to be amicable.
[1] Art. 968. Entrepreneurs shall be registered by means of an application containing:
I – their name, nationality, domicile, marital status and, if married, the property regime;
[2] STJ, RE: 776.455 RS, (2005/0140251-4) Rapporteur: Min. Raul Araújo, Date of Judgment: 17/04/2012.
[3] STJ, RE: 1.300.036 MT, (2011⁄0295933-5) Reporting Justice: Paulo de Tarso Sanseverino, Judgment Date: 05/13/2014.
[4] Judgment Date: 08/13/2003. Ruling cited by lawyer J. MACEDO BITTENCOURT, in an article published on June 26, 2006.
BITTENCOURT, J. Macedo. Alteration of the matrimonial property regime. Migalhas:[S.l.], June 26, 2006. Available at:<http://www.migalhas.com.br/dePeso/16,MI26458,41046-Alteracao+do+regime+de+bens+do+casamento>. Accessed on: May 12, 2015.
