By: Vitor Ferrari, Ivan Kubala.
Marriage, in addition to uniting the lives of two people, also unites their assets. However, adopting the correct property sharing regime is essential for spouses to protect themselves in the event of a divorce. This text addresses the differences between the existing regimes.
Both marriage and stable union are voluntary unions between two people seeking to form a new family. However, they are also the union of the assets of these people, so it is extremely important that the property regime be established by the future couple, since this will govern their assets during the union, in the event of a divorce and even in the event of the death of one of the parties, resulting in practical differences between the regimes. Based on the Civil Code, Brazilian Law generally adopts the legal regime of partial separation of assets, the same one applied to stable unions, if not predetermined. However, the spouses can change the regime in their prenuptial agreement and even add or remove clauses, creating their own regime, although there are a number of limitations. They can also change the property regime after the union, however, the change will only be authorized by court order and must meet certain requirements.

To understand the differences between the regimes, it is necessary to think about how many conglomerates of assets each one presents.

The most common regime is the partial community property regime. In this regime, there are 3 sets of assets: 2 from before the marriage, 1 belonging to each spouse, and 1 that includes all the assets acquired by the couple after the union. In the event of a divorce, each spouse keeps the assets they owned before getting married and divides equally the assets acquired while they were married.

There is also the universal community of property regime. In this regime, all assets of both spouses form a single conglomerate of assets, with no longer any personal assets, but rather belonging to the couple. In a future divorce, the assets must be divided equally between the two. In this regime, it is worth noting that, as a rule, people over 70 years of age or who depend on judicial authorization to enter into marriage cannot use it, and are required to use the following regime by legal determination.

In the total separation regime, there are 2 sets of assets, one belonging to each spouse. Therefore, the assets acquired during the marriage do not belong to both, but only to one of them, so that in a divorce each one keeps the assets that are in their name.

There is also a fourth form: final participation in the assets. This regime is the most complex of all and most used in marriage. It creates 5 conglomerates of assets: 1 for the assets that the spouse owned before the marriage, 1 for the assets that the other spouse owned before getting married, 1 for the assets acquired by the couple during the marriage, 1 for the assets that the spouse acquired alone during the marriage and 1 for the assets that the other spouse acquired alone during the marriage.

The property regimes discussed regulate assets during life. In the case of the death of one of the spouses, the new Civil Code provides that the survivor has the right to the inheritance, regardless of the regime adopted. However, the way in which the inheritance will be distributed changes as a result of the regime chosen. If the deceased has no living ascendants or descendants, the survivor will inherit the entire inheritance.

The union of two people is an extremely important celebration, whether it is for the formation of a family and the beginning of a new cycle, or for the legal consequences that its celebration brings. Therefore, first of all, the couple should seek competent specialists to help them, avoiding future problems.

With the collaboration of Luis Felipe Meira Marques Simão