By Fabio Marques

Book IV of the Civil Code, relating to family law, is divided into two parts: the first part deals with the personal rights of marriage, in which matters such as marriage, its rules of execution, nullity, impediments, divorce, separation, protection of children, etc. are regulated, and, in the second part, the code regulates the part relating to the property rights of marriage.

When the spouses are starting the process of qualifying for marriage, they can choose the property regimes that will regulate the patrimonial relations between the couple, as set out in the Civil Law, namely: (i) by the legal regime of partial communion of property; (ii) by the regime of universal communion of property and; (iii) by the regime of communion of assets and; (iv) by the regime of total separation of property, this divided into a legal regime, imposed by law in some situations, and a conventional regime, freely chosen by the parties.

With the exception of the partial community property regime, known as the legal regime, the spouses' choice of other property regimes will result in the execution of a document called a prenuptial agreement, through which the parties will decide how they intend to dispose of the couple's assets during the marriage. The prenuptial agreement must be made by public deed (art. 1653), cannot contain a clause that contravenes an absolute provision of the law (art. 1655) and, finally, will only be valid if it is drawn up before the marriage and registered in the property registry office of the spouses' domicile after the marriage.

The law defines four possibilities that, however, can be combined by spouses, as the principle of freedom to choose a regime is in force, limited, however, to constitutional and public order principles.

Under the partial separation regime, the assets owned by each spouse before the celebration of the marriage remain in the exclusive estate of each of the spouses. However, the assets acquired by each spouse during the marriage will be shared and will belong to the couple, and will be considered as such in cases of dissolution of the marriage or in the event of the death of one of the spouses. By express provision of law, however, the assets listed in article 1659 of the Civil Code will not be shared.

The universal community of property means that all present and future assets of the spouses are shared, except for assets inherited or donated with an incommunicability clause, assets encumbered by trust and the right of the trustee heir, before the suspensive condition is fulfilled, debts prior to the marriage, unless they arise from expenses with their preparation, or revert to common benefit, prenuptial donations made by one of the spouses to the other, with an incommunicability clause, in addition to the assets listed in items V and VII of article 1659 (personal use assets, books, instruments.

The final participation regime of assets, introduced by the 2002 code, provides for the existence of two assets belonging to each of the spouses, consisting of the assets that each of the spouses owned when they got married and those acquired by them during the marriage, which, in the event of dissolution of the marriage, will be divided in half for each of the spouses.

Finally, in the regime of total separation of assets, which may be consensual or mandatory, called the legal regime, the assets of each spouse will remain under the administration and exclusive ownership of each spouse, who will be free to dispose of them. It is necessary, however, to mention the STF summary 377 according to which the assets acquired during the marriage carried out under the regime of absolute separation are communicated. Although the summary mentions communication only for the regime of legal separation of assets, the summary is also applied to regimes of conventional separation if there is no express clause on this separation.

With marriage, therefore, it is possible to say that there is a change in the patrimonial status of each of the spouses who will now be obliged to attend the signing of property deeds, except in the regime of absolute separation, in addition to the acquired assets becoming part of the couple's common assets.

For these reasons, the Registrar must be careful when qualifying the title submitted for registration, and must analyze several aspects: (a) First, he must analyze whether the marital status of the person who intends to register a title matches the marital status recorded in the previous property registration. In case of difference, it is necessary to first record the marital status and the marital regime, in order to provide continuity to the information contained in the registration, in accordance with the principles of continuity and registry specialty; (b) It is also necessary to analyze whether the title contains the spouse's signature in cases where it is necessary. According to the 2002 Civil Code, the spouse's signature will only not be necessary in cases where the property regime adopted by the couple is absolute separation of assets (art. 1647).

The case law regarding the couple's property regime is quite extensive. To limit ourselves to the most eloquent cases, we give the following examples: (a) preparation of an inventory of married couples under a regime of community property or absolute separation of property, in which only the ideal half of the assets that belonged to the couple were listed; (b) impossibility of donation between spouses married under the regime of total separation of property, for which STF summary 377 is applied; (c) need for a public deed to transfer the couple's assets to a company of which one of the spouses is not a member; (d) need for the public deed in which the spouses are married under the regime of total community property to state whether they were married before or after Law 6,515-73 because if the marriage was performed under the regime of total community property after the advent of Law 6,515-79, there must be a prenuptial agreement.