Sharing of assets in divorce, separation or common-law marriage

When one couple moves towards separation or divorce there is, immediately, a pressing issue: how to share assets? Who gets the goods, namely the house they live in? This can be a sensitive topic and can lead to conflict between the coupleso knowing what the law says about sharing assets can help ease this difficult period.

Separation and divorce are different situations.

Separation and divorce are in fact different situations.While the divorce puts an end to the marriage, separation only puts an end to the duty to live in the same house and to contribute to living expenses in common🇧🇷 It may later be followed by divorce, or not. It all depends on the couple’s decision. However, in both cases the property can be shared between the couple🇧🇷 Note, if the couple does not ask for a divorce, but has asked for the separation of persons and property, the marriage remains valid, becoming a regime of separation of property. Read also: How much does a marriage cost? And how can I finance?

Sharing of goods between the members of the couple

The division of property between a couple in the event of separation of persons and property or divorce is regulated by law and depends on the marriage regime chosen at the time of marriage.However, in case of separation or divorce, we are talking about a couple who contracted marriage🇧🇷 If the couple lives in a de facto union and decides to end the relationship, how there is no legal property regime for de facto unionthe division of assets is carried out as unknown persons, that is, they are divided according to the co-ownership regime.

Sharing of property in married couples

For those who got married, how the property will be shared it depends on the marriage regime they chose before contracting marriage. In fact, when choosing the marriage regime, you are choosing the property regime that applies to it: community property, separation of property or general communion. If the couple does not make any choice, the law establishes that the marriage is under the regime of communion of acquired property. Unless the marriage took place before June 1, 1967, in which case general communion applies.

Sharing of assets under the community property regime

In this situation are very common, that is, of both members of the couple, the goods they acquire during the same. These will be of both in the same proportion. In other words, they will be divided equally. On the other hand, they belong to each one, under the terms of article 1722 of the Civil Code and, therefore, not divisible, the assets they held before marriage – called their own assets. The assets that during the marriage will also belong to each one. receive by inheritance or donation, as well as the assets acquired during the marriage resulting from a prior right.

Sharing of goods under general community regime

In the case of the marriage having been celebrated with a general communion all goodswhether prior to marriage, acquired or inherited during marriage, belong to both members of the couple (Article 1732 of the Civil Code). Soon, in case of separation or divorce they are divided equally between them.Still, the Civil Code excludes as common goods a list of goods that are considered to belong to one of the members (non-communicable goods) and which includes, among others:donated or inherited goods with the incommunicability clause; insurance expired in favor of one of the members of the couple or to cover risks suffered by their own property; clothing and other objects for the personal and exclusive use of each of the members of the couple; family memorabilia with reduced economic value; the companion animals that each one has on the date of the wedding celebration.

Sharing of goods in separation of goods

In the regime of separation of goods, there are no common goods, that is, all the goods brought into the marriage or that are acquired during the same are individual goods of each one who can dispose of them freely. in case of separation or divorce there is nothing to divide between the two. Each one gets what was rightfully theirs. The right to a family home is only excluded in specific cases and as determined by the court.

How is the division of property between married couples processed?

Knowing, in the eyes of the law, what constitutes own property, that is, exclusive belonging to each member of the couple, and common property, that is, belonging to both, How do you effectively share these assets?

The House

The couple’s house tends to be the asset on which It is more difficult to divide. Being rented, the issues raised may be minor, but surely they are complicated in the case of both and if there is mortgage credit.

In case the house is leased

In the case of being leased, it is not a good to share between the couple🇧🇷 It’s just a question of deciding who will stay in the house, whether or not an amendment to the lease agreement may or may not have to be made. changes. But if it is in the name of the other member of the couple or both, there will have to be a new lease agreement, which may imply a new negotiation with the landlord.

House belongs to one of the members of the couple

The house will belong to one of the members of the couple in two situations: if it was his before the marriage and he was married in community of property or in total separation of property or if he bought it alone after marriage and he was married in total separation of property. the house is an asset of its own, so whoever owns it will stay with it in the separation or divorce🇧🇷 The only exception will be if the house is a family home and there are children. In this case, the other spouse will be able to live in it through a lease imposed by court decision.

Home is a common good

In case the house belongs to both of them, or because they were married in general communion, or because they bought it after the marriage in the name of both, the fate of the house depends on what they agree on🇧🇷 Whoever gets the house will have to buy the part that belongs to the other. If the house was purchased using a home loan, an amendment must be made to the contract so that it can only have as titleholder the spouse who will keep the house, but this depends on the bank’s acceptance and this is not always possible, if because he does not have enough income to allow him to pay the mortgage payment. sand if so, the couple will have to find a solution that may have to go through the sale of the house.

Bank accounts and associated banking products

For the banks, the amounts deposited belong to who it is owner of the account, there is no relationship with the marriage regime. Also read: Inactive bank accounts: Beware of commissions

individual accounts

If the account is individual, i.e. the holder is only one of the members of the couple, in legal terms the amount deposited is his alone. The same goes for credits and credit cards. That is, the amounts owed for any personal credits and the amounts owed on the credit card are the responsibility of the account holder. The other spouse will not be responsible for your payment.

solidarity accounts

But if the account belongs to both, theThe amounts deposited are in equal parts of both, as well as both are responsible for paying the debts of the credit card and associated personal credit installments. Thus, even after separation or divorce both are responsible for paying current and future bank debts on these accounts if they remain open with the same ownership. This can be a problem if one of the members of the couple incurs excessive debts, for example on a credit card. So that the bank is aware of the couple’s new situation, must deliver the document confirming the separation or divorce. And the best thing is that each member of the couple opens a new account, being able to individually request personal credit to settle common credits. Only in this way are responsibilities effectively divided.Also read: Closing a bank account, can be done by yourself or the bank

Debts

But in addition to credits to banks, there may be other debts arising from family life. We are talking, for example, about payment in installments for household appliances. Here, too, the same rules apply: contracts contracted by two belong to both as long as they are not fully liquidated.

Sharing of property in de facto unions

In this case, as mentioned there is no legal system for the division of property when a de facto union ends, except for the house where they dwell🇧🇷

Division of property (excluding the house)

For the division of assets, the general rule of division of property applicable to any unknown persons: co-ownership and enrichment without cause. co-ownership the good belongs to each of the parties in proportion as each contributed to its purchase. About the unjust enrichmentif one of the members of the couple buys a good with the money of the other, then the good will belong to the latter. But, in practice, it will be difficult to prove either one or the other conditionso the same will be reached agreement.

Bank accounts and credits

In bank accounts the situation is identical to that of married couples.🇧🇷 Depends on account ownership🇧🇷 If you are an individual, money and debts will only belong to the account holder. But if the account is opened in the name of both, either the money or the credit card debts, or the payment of loans that they requested will be the responsibility of both. If the de facto union ends, you should also go to the bank and Theopen new individual accounts by settling common liabilities.

House

As for the house there are specific rules that protect the family home, it should be handed over to whoever needs it most, regardless of whether it is rented, owned by only one of them or both. will be made by the court, taking into account the economic situation of each one, age, state of health, location of the house in relation to work and whether or not there is another house to live in. If the house is rented and the contract is in the name of the other member of the couple or both, a new lease agreement will have to be drawn up. In the case of being owned by the other member of the couple or by both it will be for the court to determine what rent the person staying in the house will have to pay to the other member of the couple.