Ana Carolina Baraldi Pereira de Mello
Lawyer at Marcos Martins Advogados
Article 1639 of the Civil Code states that couples interested in entering into marriage may stipulate in advance the property regime that best suits them.
The legal exceptions to this choice are set out in article 1641 of the Civil Code, which provides for the cases in which the regime of total separation of property must be adopted, i.e. the couple will not have discretion in choosing the applicable regime. The separation of property regime in marriage must be observed by: (i) people who enter into marriage while the causes suspending the celebration of the marriage are in force, as provided for in article 1523 of the Civil Code[1], for example, widows or widowers who have a child by their deceased spouse, while the inventory has not been completed; (ii) people over the age of 70; (iii) anyone who depends on a court order to marry, such as minors.
Except in situations where the compulsory separation regime applies, if the couple does not opt for a different regime through a prenuptial agreement, the partial community of property regime will apply, which is the legal rule in the absence of an express agreement to the contrary.
Therefore, the adoption of a different regime requires the formalization of a prenuptial agreement which will stipulate the property regime, which may be expressly provided for in the code, or a hybrid regime.
The prenuptial agreement is a pre-contract, which requires the celebration of the marriage for it to be fully valid and effective, as well as compliance with the legal form, effective from the date of the marriage.
The property regimes provided for in the Civil Code are: partial communion of property, universal communion, final participation of assets and total separation.
In the prenuptial agreement, the spouses, who are the parties to the marriage, can agree on one of the legal regimes, or any other position that best suits the couple. The pact can deal with economic, personal and emotional clauses, and deliberation is free, as long as there is no legal contradiction.
It is important to note that for the prenuptial agreement to be fully valid and effective, it must comply with the formalities required by law, in light of the provisions of articles 1653 to 1657 of the Civil Code.
The prenuptial agreement must be concluded by public deed, under penalty of nullity, and followed by the celebration of the marriage, under penalty of ineffectiveness. Once registered, the instrument will be valid, including vis-à-vis third parties.
There is a current trend to establish affective penalty clauses in the pact, i.e. provisions that relate to a fine or penalty of an indemnity nature due to infidelity, for example. Another current trend is the provision of compensatory maintenance, which, unlike legal maintenance, is agreed in advance, has an indemnity nature and is determined for a pre-established period at the time of separation, based on the years of the relationship, for example.
In this way, if the couple opts for a regime other than the general rule of partial communion of property, and to the exclusion of the hypotheses of application of the legal separation regime, they must sign the prenuptial agreement providing for the desired convention and observing the legal formalities, in order to give full validity and effectiveness to the document.
Unlike the prenuptial agreement, the cohabitation agreement is an instrument signed by a couple who live together but are not legally married and does not require legal formalities.
The cohabitation pact is a simplified alternative for cohabitants in a stable union, or even dating, who want to lay down the rules governing their relationship.
The cohabitation pact regulates the measures to be adopted and avoids conflicts. As with the prenuptial agreement, the couple can freely decide on its terms, as long as there is no contravention of an absolute provision of law.
The cohabitation pact is a private, optional instrument in which cohabitants can rule out the application of the partial community of property regime in the event of a stable union. It is a doctrinal creation, since the law does not specify its terms, but the general rules of contracts apply to it.
In both cases, it is important for the couple to seek professional assistance from lawyers in order to prudently discuss the clauses included in the agreement, thus guaranteeing its absolute validity and effectiveness.
In this regard, Marcos Martins Advogados is able to assist its clients and help them conclude prenuptial agreements and cohabitation agreements, always seeking to defend their interests in the best possible way.
[1] Art. 1.523. The following must not marry
I – a widower or widow who has a child by a deceased spouse, until the couple’s assets have been inventoried and shared out among the heirs;
II – a widow, or a woman whose marriage has broken down because it is null and void or has been annulled, until ten months after the widowhood has begun or the marital partnership has been dissolved;
III – the divorced, as long as the division of the couple’s assets has not been ratified or decided;
IV – the guardian or curator and their descendants, ascendants, siblings, brothers-in-law or nephews, with the person under guardianship or curatorship, until the guardianship or curatorship has ceased and the respective accounts have been settled.
Sole paragraph. The couple may ask the judge not to apply the suspensive causes provided for in items I, III and IV of this article, proving that there is no damage, respectively, to the heir, to the ex-spouse and to the person under guardianship or guardianship; in the case of item II, the couple must prove the birth of a child, or the absence of pregnancy, during the period.
