Get to know about the possibility of changing your marriage/common-law marriage property scheme in Brazil.
Firstly, what is your property scheme on your marriage or your common-law marriage?
If it is the Brazilian regime of partial community property, the most common one, please notice that the Brazilian law presumes that the couple is a partner on 50% of all assets (and debts) acquired during the marriage or the common-law marriage.
The assets which were acquired before the marriage/common-law marriage, and the donated or inherited assets, not only before but also during the marriage/common-law marriage do not communicate with your partner.
In the other hand, the universal community property scheme is where the totality of the assets (and debts) belong to the couple, not only the assets acquired before but also the assets acquired during the marriage/common-law marriage, as the inherited and donated, except for the assets which contains clause of in-communicability.
On the separation of assets scheme, each spouse continues to be exclusive owner of its own assets, which means that there is no communication of assets in any circumstance with the other spouse, except if it is a desire. In other words, the law does not enforce the couple to join the patrimonial communication, neither the debts.
Once the marriage or common-law marriage scheme is defined, is it possible to change it?
YES! The article 1.639, § 2º of the Brazilian Civil Code allow it, as long as the follow requisites are fulfilled:
· Both request through the judicial process;
· There needs to be a fair reason to order the property scheme modification; and
· It cannot supervene damage or loss to third parties due to the ordered modification.
After the judicial authorization, the property scheme modification of the marriage or the common-law marriage will produce future effects, even with the objective of protection upon third parties, and it does not achieve the previous patrimony.
On the common-law marriage, there are 2 possibilities: one which is recognized through the registry, common-law marriage contract (public deed), and the one which is not declared, without any document.
In case of common-law marriage contract, whereby the property scheme modification is established by the couple, to make the change of this scheme it is only necessary to make an additive term containing the new property scheme, which has to be registered on the same Notary Public where the original contract was made.
In case the common-law marriage contract does not exist, it is necessary, firstly, to obtain the judicial statement, to proceed with the subsequent property scheme modification. It is important to mention that is also possible, if the cohabitants desire, primarily the judicial sharing of the assets acquired during the common-law marriage, so after the future property scheme modification can be made.
If the effects of this modification will be applied since the marriage/common-law marriage beginning or from the sentence which defined the modification, it depends of the judicial decision to each case.
KEYWORDS: marriage; common-law marriage; modification; property scheme; patrimony.