Property system on the common-law marriage

Common-law marriage: can I establish a retroactive effect upon the property system?

A recent decision from the Superior Court of Justice (RESP 1.845.416), in Brazil, understood that it is not possible to establish the property system with retroactive effects.

The common-law marriage covenant is the formalization of coexistence between two persons, as if they were married. It has a big advantage in its facility, since it is made through issuance of public deed in Notary Public. Also, eventual modifications desired by the cohabitants has the same facility: it is enough to present a complementary deed upon the first one – modifying, for example, the property system which is applied to the common-law marriage.

A relevant point is the possibility of the deed to contain the date of the actual beginning of the coexistence, not being necessary that the deed contains the date of the issuance, as it happens with the civil marriage.

Those facilities, however, must be surrounded by care concerning to the definition of the property regime of the common-law marriage. It happens because, in case of not dispose in other way, it is presumed that the common-law marriage (all of it, since the declared date of the union!) will be governed by the Brazilian regime of partial community property.

Future changes can be made, but it will only produce effects from then. In other words, the only declaration of will which is going to have retroactive effect will be the first one.

Therefore, it is important not to let the facility and quickness of the common-law marriage govern your choices, so deciding carefully the best matrimonial regime for the couple in the present and, especially, for the future.