The majority of couples in Brazil follow the partial communion regime of goods if they do not choose another regime when getting married or entering into a stable union.
It sets forth specific guidelines on distinguishing common property from individual property for each spouse, as outlined in Articles 1.658 to 1.666 of the Civil Code.
This article will discuss the functioning of partial communion of goods, focusing on what is part of and not part of the shared assets, how assets are divided in case of divorce, and the role of lawyers in guiding clients through this financial arrangement.
What is multi-parenting and how does it impact the legal consequences for families?
What does partial communion of goods mean?
Only the assets obtained through significant effort during the relationship are considered part of the shared wealth in partial communion of goods.
Property obtained before marriage or received through donations and inheritances will continue to be the separate property of each spouse, even during the marriage.
This rule aims to achieve a fair distribution of inheritance by taking into account the contributions of both parties to the family’s well-being.
In the partial communion of goods system, as stated in Article 1.658 of the Civil Code:
In a partial community property regime, the assets acquired during the marriage are shared between the couple, except for specific cases outlined in the relevant articles.
Analysis of CPC articles 528 to 533 regarding Food Execution
What items are involved in partial communion?
The items considered part of the shared inheritance are those obtained while married, like:
- Real estate acquired post marriage.
- Items obtained during the marriage, regardless of the buyer.
- Earnings from personal property, such as the income generated from renting out a spouse’s individual property.
- Benefactors produced personal items using shared resources.
Legal foundation: Article 1.660 of the Civil Code governs their entry into communion.
The property obtained during a marriage through a costly title, even if it is only under the name of one spouse.
Goods obtained through any means, whether with or without effort or expense.
Goods obtained through donation, inheritance, or legacy, in favor of both spouses.
Private property owned by each spouse has blessings.
The fruits of shared possessions or personal assets in a marriage are evident in the commitment to the relationship or may be subject to division if the partnership ends.
What items are excluded from partial communion?
Goods that are not included in the partial sharing of goods are:
- Acquired prior to getting married.
- Donations or inheritances received by one person, even after marriage.
- Personally owned items like clothes and personal care products.
- Debts incurred before marriage or that did not benefit the household.
Legal foundation: Article 1.659 of the Civil Code. Omit from communion.
Each spouse’s property during marriage, as well as that of surviving spouses, acquired through gift or inheritance, and their replacements in the marriage.
Goods purchased using funds that solely belong to one spouse in place of their personal property.
Pre-marital responsibilities.
IV – the responsibilities of unlawful actions, unless they benefit the couple.
Personal items, books, and professional tools.
The beginnings of the individual efforts of each partner.
Pensions, beach loungers, hills, and other comparable sources of revenue.
How are goods shared in a partial community of goods regime in the event of divorce?
In case of divorce or the end of a stable relationship, the shared assets are split equally between partners, regardless of financial contributions.
Private property still belongs to the spouse who owns it.
If a property was obtained during marriage using one spouse’s income, it will be divided equally. In the case of inheritance, the property belongs exclusively to the inheriting spouse.
How does inheritance work under the system of partial community property?
Partial sharing of assets also affects the entitlement to inheritance.
The surviving spouse can claim a share of the deceased spouse’s individual estate in case of death.
Guide your customers on the proper way to handle inheritance.
- It is important to investigate the background of each item to establish if it is shared or unique.
- Guide your customers to maintain purchase records, contracts, and other documentation that demonstrates the source of the acquired products.
- Explain how the partial sharing of assets impacts wealth planning and inheritance, recommending wills or prenuptial agreements to prevent potential conflicts.
- Encourage out-of-court negotiation to prevent disputes from going to court whenever feasible.
- Antenupial agreements can be a valuable option for couples looking to personalize their property arrangements before formalizing their union.
If a couple owns a property acquired during their marriage and the husband passes away, the wife will inherit half of the property and will share the other half with the children. However, if the property belonged solely to the deceased, the widow will inherit on equal terms with the children.
How can conflicts in consecutive planning be prevented under the partial community property regime?
Here are some suggestions for preventing conflicts in consecutive planning in the regime of partial community of goods:
- A will can specify how assets are divided among heirs, ensuring that at least 50% of the inheritance goes to legitimate heirs. The remaining 50% can be allocated to the spouse, children, or others, helping to minimize conflicts.
- Spouses can choose a different property regime through an antenupial pact to prevent uncertainties or disputes, which will impact how assets are divided in the event of death or divorce.
- Strategic estate planning commonly involves lifetime donations with specific conditions, like providing lifetime benefits to the surviving spouse. Another popular strategy is establishing family trusts to streamline asset management and inheritance distribution. It also includes open discussions about expectations and inheritance division, with decisions formally documented.
Advantages and disadvantages of partial communal ownership?
Benefits
Goods obtained before marriage or through inheritance or donation are not subject to joint property laws.
Goods bought during marriage become shared automatically, making it easier to manage assets.
In most cases, the standard legal regime in Brazil eliminates the necessity of a prenuptial agreement, aligning with practical reality.
Challenges
Determining whether a product is unique or shared can lead to disagreements, particularly when it has a mixed or pre-existing background.
Non-financial contributions, such as caring for the home and children, can be challenging to demonstrate their economic value, leading to a lack of recognition in future settlements.
One party may hide or disguise assets acquired during the relationship, posing a risk to a fair distribution of assets.
Companies established prior to the merger may face growth obstacles due to the combined effort.
Analyzing financial and historical documents to determine what can be divided can result in expenses and delays during divorce proceedings due to complexity in dissolution.
chsyys/GettyImages
Tips for lawyers dealing with cases involving partial community property regime
Lawyers need to pay extra attention to safeguard their clients’ rights in the partial communion regime of goods.
Here are some recommendations for handling such situations:
Suggests creating a pact that hinders competition.
It is important to advise couples on the significance of a prenuptial agreement when they have assets individually acquired before marriage.
This tool enables the husbands to establish clear guidelines for managing and dividing assets, preventing possible disputes later on.
It is important to note that the agreement needs to be recorded at the registry office as specified in Article 1,657 of the Civil Code for it to be legally valid.
Organizing and preserving documents in the east direction
Advise your customers to maintain thorough documentation of the source of the items they buy before and during marriage.
Documents like purchase agreements, receipts, tax invoices, and bank statements are crucial for verifying the source of goods in any transactions involving sharing.
Explain the significance of officially registering donations or inheritances received, as these assets are not automatically shared with the spouse unless specified otherwise.
Get ready for sharing goods processes
During a divorce, dividing property can be a complicated task, so be ready to determine the ownership share, especially for items bought during the marriage, which are generally considered shared property.
Technology tools like Legal AI, which is artificial intelligence designed for lawyers, can be a valuable asset in saving time when drafting initial petitions, responses, and other legal documents.
This will allow you more time to concentrate on developing the case strategy and preparing the required documents for distributing goods.
Explain debts and responsibilities.
Debts taken on before marriage or that do not benefit the family are typically the sole responsibility of the individual who incurred them, which is a common concern among customers.
Debts linked to family support or the purchase of shared assets could be divided under the partial community property system.
Guide on Effective Planning
Succession planning should be included in the attorney’s advisory services to prevent conflicts among heirs.
Suggests creating wills and other legal documents, like lifetime donations with specific conditions (e.g. non-transferability or non-communicability).
This method is particularly important for safeguarding assets belonging to others and upholding the wishes of spouses.
The lawyer’s strategic role in managing assets is a key aspect of shared ownership.
The system of limited community property outlined in Articles 1.658 to 1.666 of the Civil Code clearly distinguishes between shared property and individual property of each spouse.
Understanding the specifics of this system is crucial for lawyers to offer effective and tailored guidance to clients’ objectives.
This involves providing guidance on creating prenuptial agreements and managing conflicts during a breakup.
Preventive measures, like organizing documents and negotiating outside of court, are crucial to prevent legal disputes and guarantee legal certainty.
The lawyer plays a crucial role in ensuring fair and harmonious solutions for couples entering into a union or dealing with the division of assets.
Read our article about Shared Guard: Discover its functionality and when it is not advisable to use.