Vitor José Ferreira do Couto
Lawyer at Marcos Martins Advogados
In a recent decision, the 3rd Chamber of Private Law of the São Paulo State Court of Justice ruled that an ex-spouse who remains in exclusive use of a common property after divorce must pay rent to the ex-partner.
The controversy was brought to court through a Rent Arbitration Action brought by the ex-spouse against the ex-wife who remained living in the property after the de facto separation, on the grounds that it would be necessary to arbitrate rent in order to avoid the illicit enrichment of one of the parties, to the detriment of the other.
In her defense, the ex-wife claimed that in order for rent to be charged, it would be necessary to extinguish the condition of joint ownership that the ex-couple had until then, through the definitive division of the property, with the condominium institute coming into force.
However, this view was not supported by Judge Carlos Alberto de Salles, who, in the judgment of the appeal, stressed in his vote that, although the couple’s assets had not yet been definitively divided, the rent should be set, maintaining the proportion of 50% of the property for each of them.
This is because recent judgments by the Superior Court of Justice, as well as by the São Paulo Court of Justice itself, have come to interpret the situation from a practical point of view, according to which the maintenance of only one spouse in the ex-couple’s common property could cause real illicit enrichment of the one who enjoys the property, for long years, until there is a decision on sharing and divorce or dissolution of a stable union.
Thus, the decision was unanimous and established that the amount of the rents should be determined in a settlement judgment, due to the disagreement between the parties.
Marcos Martins Advogados is attentive to the latest case law in order to provide adequate and effective advice to our clients.
