Mandatory separation of assets

According to Brazilian Law, the mandatory separation of property regime is imposed in certain situations by law: (i) if they marry without observing the suspension causes of the celebration, when a stepfather wants to marry their stepdaughter, for example; (ii) if one of the spouses is over 70 (seventy) years of age; and/or (iii) if one of the spouses depends, in order to get married, on judicial authorization. The most controversial point is the question of age. Until 2010, the age provided for in the law was 60 years old, when the law was changed to those over 70 only. The much-criticized justification for imposing this regime is to avoid that, in marriages between people with a large age difference, the younger person could come to use the union to obtain economic advantage. To add to the problem, Precedent 377 of the Federal Supreme Court that applies to the legal separation regime can be interpreted in two ways: (i) the goods acquired during the course of the marriage are communicated, assuming the common effort; or (ii) the assets acquired during the course of the marriage are communicated, as long as the common effort is proven. Now, the proof of common effort is extremely difficult, being intrinsic to coexistence and mutual dedication in the construction and maintenance of marital life, so that the idea of ​​common effort should not only and strictly comprise the patrimonial contribution, but all kinds of contribution to the management of life together. As this is an issue that has given rise to fierce disputes and effective controversy in the scope of Family Law and Inheritance Law, the most appropriate is to carry out a prenuptial agreement containing the provisions that will govern the marriage and the situations to be sought to encompass as a common effort, in addition to being essential to carry out estate and succession planning for the best handling of the issue before all heirs.