Marriage

Rajuk and Oliveira: Marriage, Property Governance and Inheritance

1. Marriage and property regime
In Brazilian civil legislation, in response to Article 1,639 of the Civil Code, the final rule is in depth freedom of alternative of property regime between spouses. The legislation permits spouses to decide on between partial neighborhood rule, common neighborhood, separation of property and final participation in affairs.

If there isn’t a prenuptial settlement, the property regime is partial communication. Another regime requires a prenuptial settlement, created by public deed, the validity of which depends upon the conclusion of the wedding, then it have to be taken to the true property registry of the couple’s residence, registered in ebook No. III. Parties, pursuant to Section 244 of the Public Records Act. In addition, the settlement should register the couple’s property in the course of the marriage and the property acquired over time.

2. Compulsory segregation of belongings
The legislation imposes necessary separation of property regimes within the circumstances listed in Article 1.641 of the Civil Code:

I. If the explanations for suspending the wedding celebration usually are not noticed;
2. In individuals over 70 years of age;
III. Of all who rely to marry, on consent or judicial provide of age.

According to Federal Supreme Court precedent 377, in such a regime, the query that arises is the communion of Acoustos:

In the authorized division of property regime, these acquired in the course of the marriage are approached.

But the Superior Court of Justice understood that its software depends upon proof of normal effort, with out which there isn’t a communication of questions, as determined within the judgment of particular enchantment 1.403.419/MG (2013/0304757-6):

“Special appeals. Civil and civil procedural. Family legislation. Actions for the popularity and dissolution of a typical union. Division of products. Sexagenary companion. Art. 1,641, II, CHEWDE201 (COILDEW1, II, COILDE204 No.) Proof of widespread efforts for authorized separation of products. Evidence required enchancment and development sharing included in earlier No. 7/STJ.
1. Legal separation of property regime in a steady union is necessary when one of many companions, in the beginning of the connection, in gentle of the unique wording of artwork, is over sixty years of age. 1.641, II of the Civil Code, to keep away from status in a steady union instead of marriage, to attain uniqueness within the system.
2. In the obligatory separation regime, belongings acquired in the course of the marriage are communicated solely by widespread efforts, underneath penalty of perverting the authorized possibility, imposed for causes of public order.
3. Review the conclusion of widespread precedents to the impact that, correctly confirmed, the plaintiff’s try and assemble and enhance upon the land owned solely by the appellant, imposing a partition, would demand factual reexamination. , which is unlikely in a particular enchantment underneath the phrases of Superior Court of Justice precedent No. 7.
4. Special enchantment not granted” (STJ, REsp n. 1.403.419/MG, Reporter Justice Ricardo Villas Bose Cueva, Third Panel, Judge on 11/11/2014, DJe of 11/14/2014.) ( Highlights usually are not included within the authentic).

3. Inheritance between spouses
The normal rule of succession legislation is that the surviving partner inherits, in response to Article 1829, III, of the Civil Code.

The surviving partner is the authorized inheritor, until married to the deceased underneath the rule of common neighborhood or obligatory separation of property pursuant to Articles 1829, I, and 1,641 of the Civil Code.

Thus, the surviving partner participates within the inheritance within the following regimes:

a) partial communication, if there are private items;

b) standard separation, and

c) Participating on the finish of the query.

Do not compete with different heirs of the regime:

a) partial communication, if there isn’t a private product;

b) public communication of merchandise, the place they are going to have half;

c) Compulsory segregation of belongings.

Even taking the customary separation of present and future belongings, the surviving partner is taken into account the authorized inheritor, as established by the Superior Court of Justice, within the judgment of Special Appeal No. 1.382.170/SP (2013 / 0131197-7). :

“Civil. Law of succession. Spouse. Necessity of heirs. 1.845 of CC. System of customary separation of products. Competition with descendants. Possibility. ART, ICCHE 1.92,8
1. The partner, whatever the property regime adopted by the couple, is the mandatory inheritor (Art. 1845 Civil Code).
2. In standard division of property regimes, the surviving partner competes with the deceased’s descendants. The legislation excludes competitors solely in circumstances of authorized segregation of sources supplied for trade. 1641 of the Civil Code. Interpretation of Art. 1829, I, of the Civil Code.
3. Lack of particular enchantment” (STJ, REsp n. 1.382.170/SP, Reporter Minister Moura Ribeiro, Reporter for Judgment Minister Joao Otavio de Noronha, Second Section, Judgment on 4/22/2015, 5/26/2015- of DJe )

4. Place of Prenuptial Agreement in Mandatory Separation of Property, Aquestians to exclude communication
It has already been famous that, within the obligatory separation of property regime, the surviving partner shouldn’t be thought of an inheritor.

Is it attainable for a prenuptial settlement for an individual over 70 years of age, when the necessary separation of property regime has been adopted, excluding the wedding union?

The reply is affirmative, in response to the precedent of the Corregadora Geral da Justica de São Paulo, within the administrative appeals ruling, throughout the scope of the wedding license course of. The litigants, one or each of whom had been over 70 years of age, created a public deed of a prenuptial settlement to exclude the couple’s union. In view of the civil registry officers’ refusal to have a good time the wedding, requests for measures had been raised, rejected within the first diploma, however accepted within the second diploma, for the approval of the celebration of the wedding:

“Administrative Appeal No. 1065469-74.2017.8.26.0100 (412/2017-E)
Civil registry of individuals – Marriage – Prenuptial settlement – Compulsory separation – Determination of removing previous to STF 377 – Possibility
– In circumstances the place the regime of obligatory separation of property is imposed (Article 1641 of the CC), it’s given to the bride and groom, by way of a prenuptial settlement, to offer the companions with full inseparability, eradicating the circumstances of Excelso Praetorio precedent 377, supplied that each one different measures of obligatory separation Rules are maintained.

The situation that the obligatory segregation system shouldn’t be confused with an settlement to vary the traditional segregation of products, which is unacceptable.”

“Administrative Appeal No. 1047631-16.2020.8.26.0100 (63/2021-E)
Civil registry of pure individuals – Administrative process (qualification for marriage) – Spouse over 70 years of age – Compulsory separation of property regime (Civil Code, Att. 1641, II)
– Prenuptial settlement which foresees the removing of circumstances of Federal Supreme Court precedent No. 377, in order to not talk any query – More burdensome regime than supplied by legislation – Possibility – Appeal granted sentence to change and, subsequently, of the validity of the wedding pursuant to the prenuptial settlement permits, as concluded.”

Such selections had been handed down by way of administrative procedures to allow marriages. At the judicial degree, by way of the listing of property belongings, there’s a judgment of the Court of Justice of São Paulo, within the sense of recognizing the validity of the prenuptial settlement that excluded the Acoustos’ communication:

“Inventory. Decision declaring invalidity of public deed, figuring out software of precedent 377 of E. STF. Interlocutory enchantment. Inventory, inheritor of deceased, who was married to appellant underneath obligatory separation of property. Precedent 377 of E. STF A public deed that expressly waives the applying of. Public deed marked as a real prenuptial settlement. Possibility of spouses to settle the incompatibility of {couples}. Doctrinal understanding that it’s attainable for the events. To waive the applying of the foregoing precedent. Appellant who issued from the notary workplace. connected an announcement stating that the long run partner meant to waive the precedent. Decision reversed. Appeal granted.” (TJ-SP; Interlocutory Appeal 2277793-02.2020.8.26.0000; Reporter: Maria Salete Correa Dias; Judge Body: 2nd Private Law Chamber; Central Civil Court – 1st Family and Inheritance Court; Judgment/6/2020 Judge Date: 7/ 7/2021).

From the above, it may be concluded that the development is in direction of the popularity of the effectiveness of the prenuptial settlement within the necessary separation of property regime, to the exclusion of the communion of acquiestos supplied for in earlier 377 of the STF.

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