Direito Civil: Regime de Bens (1ª parte)

Summary

In this video, Marcelo Morales, a Civil Law professor, introduces the concept of property regimes in marriage under Brazilian law. He explains the basic principles of property regimes, including the imutability (non-alteration) rule and exceptions, as well as different regimes such as total separation of assets (both legal and conventional). He highlights the legal nuances, including the requirements for judicial changes and outorga uxória (spousal consent). The video concludes with an invitation to explore other property regimes in the next video, offering a comprehensive understanding of the complexities surrounding marriage and property law.

Takeaways

• 😀 The property regime ('Regime de Bens') in Brazilian family law regulates the economic relationships between spouses and their interactions with third parties.
• 😀 The general rule is that property regimes are immutable once chosen by the couple, though a judicial change may be allowed under specific circumstances, as outlined in the Civil Code (2002).
• 😀 The possibility of judicially changing a property regime is called 'mutabilidade motivada' and requires proof that the change is beneficial for the family unit and does not harm third parties.
• 😀 There are several types of property regimes in Brazil, including: 'Communhão Universal de Bens' (Universal Community of Property), 'Comunhão Parcial de Bens' (Partial Community of Property), 'Participação Final nos Aquestos' (Final Participation in Acquisitions), and 'Separação Total de Bens' (Total Separation of Property).
• 😀 Some property regimes can be customized through a prenuptial agreement (pacto antenupcial) that must be notarized and registered in order to have legal effect.
• 😀 The legal default property regime, in the absence of a prenuptial agreement, is 'Comunhão Parcial de Bens' (Partial Community of Property), unless invalidated or forgotten in the agreement process.
• 😀 The 'outorga uxória' (spousal consent) is required for certain legal actions, such as selling or encumbering property, and varies depending on the property regime chosen.
• 😀 In the 'Separação Total de Bens' (Total Separation of Property), each spouse manages and controls their individual assets separately, both for pre-marital and acquired property during the marriage.
• 😀 The 'Separação Total de Bens' is mandatory in specific cases, including marriages involving individuals over 70 years old or those needing judicial authorization due to special circumstances (e.g., young couples between 16 and 18 years old).
• 😀 The Supreme Court's 'Súmula 377' establishes that, even in a Total Separation of Property regime, property acquired during the marriage may be shared if it can be proven that both spouses made joint contributions to the acquisition, despite the legal presumption of individual ownership.

Q & A

What is the main focus of the video script?

The main focus of the video is explaining the different types of matrimonial property regimes in Brazilian law, specifically the 'Regime de Bens' (Property Regimes), with detailed discussions on the 'Separação Total' (Total Separation) and related legal concepts.

What does 'Regime de Bens' mean in the context of marriage?

'Regime de Bens' refers to the set of rules that govern the economic relations between spouses or partners, outlining how assets and debts are managed both within the marriage and in relation to third parties.

Can couples change their chosen property regime during their marriage?

Yes, under the 2002 Civil Code of Brazil, couples can change their property regime through a judicial process called 'mutabilidade motivada', which allows the couple to request a change if they prove that it benefits the family entity and does not harm third-party rights.

What are the main types of property regimes mentioned in the video?

The video mentions four main types of property regimes: 1) Comunhão Universal de Bens (Universal Community of Property), 2) Comunhão Parcial de Bens (Partial Community of Property), 3) Participação Final nos Aquestos (Final Participation in Acquisitions), and 4) Separação Total de Bens (Total Separation of Property).

What is the 'Regime de Separação Total' (Total Separation) and how does it function?

The 'Regime de Separação Total de Bens' means that all assets acquired before and during the marriage remain the individual property of each spouse. There is no sharing of property or income. This regime can be either 'obrigatória' (mandatory) or 'convencional' (voluntary).

In which situations is the 'Separação Total' mandatory under Brazilian law?

The 'Separação Total de Bens' is mandatory in three specific cases: 1) When the couple marries under a 'suspensive cause' (such as a widow attempting to marry within ten months of her spouse’s death), 2) When either spouse is over 70 years old, and 3) When the couple requires judicial authorization to marry due to age (between 16 and 18).

What does 'outorga uxória' mean and when is it required?

'Outorga uxória' refers to the requirement that both spouses must give consent for certain legal acts, such as selling property or pledging assets. This consent is typically required unless the regime of 'Separação Total Convencional' (Conventional Total Separation) is in place, where no consent is needed.

What are the legal consequences if a spouse performs an act without the required 'outorga uxória'?

If a spouse performs a legal act requiring 'outorga uxória' without the consent of the other spouse, the act is considered annulable. A request for annulment must be made within two years, starting from the dissolution of the marriage.

What is the difference between 'Separação Total obrigatória' and 'Separação Total convencional'?

The 'Separação Total obrigatória' (mandatory) is imposed by law under specific circumstances, such as when the couple is over 70 years old or when the marriage is authorized by a judge due to age restrictions. In contrast, 'Separação Total convencional' (conventional) is a choice made by the couple, where they decide not to share any assets during the marriage.

Can a couple in the 'Separação Total obrigatória' regime share property acquired during the marriage?

No, under the 'Separação Total obrigatória de bens', all property acquired during the marriage remains individually owned by each spouse. However, there are nuances in the jurisprudence, as the Supreme Federal Court (STF) has stated that property acquired during the marriage, even under this regime, may be shared if it can be proven that there was mutual effort (effort comum).

What is the significance of the 'Súmula 377' of the STF regarding property regimes?

'Súmula 377' of the STF clarifies that property acquired during the marriage, even under the 'Separação Total obrigatória de bens', will be shared between spouses if it is shown that there was mutual effort in acquiring it. However, the STJ (Superior Court of Justice) does not automatically presume this effort and requires proof.