BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
it and/or the possibilities of those who pay. In order to define the value of the maintenance, the party in need must prove all their expenses and the amount must also comply with the financial capacity of the person who must pay the pen - sion. The judge can break the maintenance debtor’s tax and asset secrecy, request information from the financial and asset control bodies and credit card administrators and contact employers and third parties to find out the maintenance debt - or’s assets and financial situation. The judge can also determine that the payment of maintenance be directly deducted from the debtor’s wages or other financial assets (eg, receipt of rent or other credits). Compensatory Maintenance In addition, so-called compensatory mainte - nance has been gaining ground in doctrine and jurisprudence, despite not having a legal pro - vision, with the purpose of compensating the economic-financial imbalance between divorced parties and respecting the standard of family life, especially when there is no sharing of assets under the chosen regime. Unlike transitional maintenance, in this case the beneficiary has the financial resources to ensure their subsistence, but the divorce drastically changes their standard of living. Therefore, the financial assistance will be of a compensatory nature. 2.5 Prenuptial and Postnuptial Agreements Prenuptial Agreement In the Brazilian legal system, the prenuptial pact is recognised, but there is no postnuptial pact or agreement. In this context, there is only the possibility of judicial amendment of the prop -
erty regime, and this is subject to certain legal requirements. The prenuptial agreement is the document through which the parties establish the eco - nomic, financial and/or personal conditions that will govern the marriage relationship. In it, they decide on the property regime or freely adapt the rules, while simultaneously respecting the legal prohibitions. A prenuptial agreement is void if it is not made by public deed, and ineffective if the marriage does not take place. In addition, it will only be effective vis-à-vis third parties after it is regis - tered with a competent real estate notary. Amendment to the Property Regime The only possibility of changing the property regime after marriage is through a judicial pro - cess, which must be consensual, with proof of the reasons for the request and safeguarding the rights of third parties. According to the Superior Court of Justice, in the judgment of Special Appeal No 1.904.498-SP of the Third Panel on 5 April 2021, the assets acquired before the judicial decision authoris - ing the change of regime must remain under the rules of the previous regime – that is, the judicial review should only cover legal acts performed after the sentence (ex nunc effects). In addition, spouses are not required to provide exagger - ated justifications or evidence, disconnected from reality, especially in view of the fact that the decision granting the modification of the property regime has ex nunc effects. 2.6 Cohabitation The division of assets for unmarried couples (heterosexual or same-sex) presupposes the proof of existence of a cohabitation or so-called
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