BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
Marital Regimes The Brazilian Civil Code establishes the following regimes for marital property: • Universal community of property – all combined property is considered common, including assets inherited and received in donation (except if received with a “do not commingle” clause). Debts are also shared unless they are incurred for the sole benefit of one spouse. This was the default marital regime until 1977. • Partial community of property – this is the regime currently applicable by default in cases where par ‑ ties do not choose a different one. All the assets onerously acquired during a marriage are con ‑ sidered part of the community property, while all assets that each spouse acquired prior to the mar ‑ riage or those received by donation or inheritance are excluded from the common estate and are con ‑ sidered separate property. Any assets that replace the separate property shall also be put outside of the common estate. However, proceeds from the common or separate property of each spouse received during marriage will also be considered part of the common estate. Improvements made to the separate property of each spouse usually belong to both. Debts are also shared unless they are incurred for the sole benefit of one spouse. • Voluntary separation of property – each spouse has their own separate property, but they may choose to acquire assets in co-ownership. Each spouse is responsible for the debts individually incurred. • Mandatory separation of property – this regime is applicable under specific circumstances (pend ‑ ing division of property after a divorce, one of the spouses being over 70 years old, etc). However, in 2024, the Federal Supreme Court decided that, when one of the spouses is over 70 years old, the couple can waive the application of this regime and opt for a different arrangement through the signing of a public deed. Although the regime name refers to “separation”, Precedent 377 of the Brazilian Federal Supreme Court established that assets acquired onerously during the marriage in this regime may be considered common property. • Final sharing of acquests – one spouse does not take part in the administration of the other spouse’s assets. However, neither of the spouses
Interlocutory decisions issued by lower courts may, in specific circumstances, be challenged before a state court. Final judgments, by contrast, are in principle always subject to appeal. In limited scenarios, excep ‑ tional appeals may also be filed before the Superior Court of Justice, when related to violations of federal law, or before the Supreme Federal Court, in cases involving breaches of the Federal Constitution. 2.3 Division of Assets The liquidation rules will depend on the matrimonial regime chosen by the spouses through a prenuptial agreement. If a regime is not chosen, the legal regime – partial community of property – will prevail unless stated otherwise by law. Regarding shared assets, courts may rule for co-ownership or determine which assets will make up a spouse’s individual estate, depending on the case. Regulation and Reallocation of Assets Upon Divorce If no agreement is reached, the courts can make financial orders to divide marital property and address post-divorce financial needs. The most important order is the division of assets and debts, carried out according to the applicable marital property regime, but the courts may also order spousal maintenance, and regulate the use of shared assets and right to occupy the family home. These decisions are guided primarily by the Brazilian Civil Code, considering the marital regime and pre ‑ nuptial or postnuptial agreements. Marital fault itself is generally irrelevant, unless it leads to fraud, conceal ‑ ment or dissipation of assets. Disclosure of Assets In order to identify the assets, Brazilian courts have a wide range of options, from enforceable court orders to the spouses or third parties to direct access to bank statements (“Sisbajud”), tax returns (“Infojud”), and company ownership (“Sniper”), among others. In con ‑ tested divorces, the disclosure process takes place within the divorce lawsuit after the parties’ first dec ‑ larations, during the production of evidence.
51 CHAMBERS.COM
Powered by FlippingBook