BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
Separate property regime This is established by means of a prenuptial agreement drawn up by public deed with a notary public before the marriage, which is then registered with the competent real estate registry after the marriage. In it, there is no communica - tion of assets and liabilities: the titleholders will always be the acquirers and there is no need to speak of a presumption of common effort, much less of sharing in the event of a divorce. It is possible for a spouse or partner to donate to the other, unless this practice is prohibited in the prenuptial agreement. It does not require the granting of rights over private property. Mandatory separate property regime This is the regime imposed by law in certain situ - ations, namely: • people who contract marriage in breach of the suspensive causes of marriage; and • a person over 70 years old, if another regime through a public deed issued by a notary public has not been chosen. This regime used to be mandatory for persons over 70 years old. However, on 1 February 2024, the Supreme Court of Brazil issued a decision unanimously determining that such regime will be optional – that is, it may be removed by express will of the parties, through a public deed. This means that when one or both of the parties over 70 years old does not choose a dif - ferent regime according to their will, the legal regime of property applicable in Brazil is that of mandatory separate property regime. The rea - son for such decision was that the restriction on the choice of regime violated the dignity and autonomy of the elderly. This regime is also imposed for all those who depend on judicial supply to marry.
In this regime, there is no communication of assets, except if the common effort of the claims is duly proven, as provided for in Precedent 377 of the Supreme Court of Brazil ( Supremo Tribu- nal Federal , or STF) – in which case, the shar - ing will take place in the proportion of 50% to each party. By means of a prenuptial agreement, which is mandatory in this regime, the incidence of Precedent 377 of the STF may be ruled out. This regime prohibits donations between spous - es or partners. Further, there is no sharing and it does not require the granting of rights by the spouse. Final participation in the quests regime This regime is rarely practised in Brazil. In this regime, each spouse or cohabitant will own and manage their own assets, which will always remain incommunicable. At the end of the rela - tionship, the claims for the time of the marriage or stable union will be determined – even if arising from private or common property – and divided in the proportion of 50% respectively. This requires the granting of rights over assets, even if the assets are private. Patrimonial Search If there is a lack of knowledge of assets, espe - cially financial assets that make up the assets accumulated by one of the parties in the matri - mony or stable union, the aggrieved party may request – prior to or incidentally to the sharing process – the search and/or blocking of assets and financial assets. The judiciary can determine the breach of banking and tax secrecy, carry out research with the Federal Revenue Service, the Central Bank, state traffic departments, real estate registry offices, etc. Once the assets are known, the blocking and attachment can be determined. These measures can be enacted at the outset and are processed under the secrecy
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