CASAMENTO PELO REGIME DA SEPARAÇÃO TOTAL DE BENS: COMO FAZER E ONDE REGISTRAR O PACTO ANTENUPCIAL?

The total separation of property regime—also called absolute separation or conventional separation—is the one a couple chooses to apply to their marriage or common-law union. Choosing this or another specific property regime overrides the legal property regime, that of partial community property. However, for this to happen in a marriage, certain formalities must be completed. The first is the preparation of a prenuptial agreement, which must be done through a public deed drawn up at a Notary's Office. Only after having this document in hand can the couple begin the marriage registration process at the Civil Registry Office. After marriage, the rules of that prenuptial agreement come into effect, but they are only binding on the husband and wife. To ensure that all other parties are subject to the couple's choices, the prenuptial agreement must be submitted to the Civil Registry Office in the jurisdiction of the couple's first residence. In the video, I explain each of these phases and, at the end, I give examples of the patrimonial consequences of registered and unregistered prenuptial agreements. Legal fragments on the topic: Definition of prenuptial agreement: "a legal instrument drawn up before marriage, through which the parties agree on the economic and patrimonial rules of marriage, or by making adaptations to one of the property regimes provided for in the Brazilian Civil Code." (Rodrigo da Cunha Pereira) VIII CIVIL LAW CONFERENCE. STATEMENT 635 – Art. 1,655: Prenuptial agreements and cohabitation agreements may contain existential clauses, as long as they do not violate the principles of human dignity, equality between spouses, and family solidarity. CIVIL CODE "Art. 1,639. The spouses are permitted, before the marriage is celebrated, to stipulate whatever they wish regarding their assets. § 1. The property regime between the spouses comes into effect on the date of the marriage. § 2. A change in the property regime is admissible upon judicial authorization in a reasoned request by both spouses, having determined the merits of the reasons invoked and safeguarding the rights of third parties.” Art. 1,640. If there is no agreement, or if it is null and void, or ineffective, the partial community property regime shall apply to the property between the spouses. Sole Paragraph: The spouses may, during the qualification process, opt for any of the regimes regulated by this code. Regarding the form, the option for partial community property shall be reduced to a written agreement, with the prenuptial agreement being made by public deed in all other cases. Art. 1,653. A prenuptial agreement is void if not made by public deed and ineffective if not followed by marriage. IV Civil Law Conference of the Council of Justice. Statement 331: “Art. 1,639. The couple's patrimonial status may be defined by choosing a property regime different from those typified in the Civil Code (art. 1,639 and sole paragraph of art. 1,640), and, for the purpose of faithful observance of the provisions of art. 1,528 of the Civil Code, requires certification in the marriage registration process.” A prenuptial agreement is a contract entered into by the engaged couple to establish the property regime and property relationships that will apply to the marriage. (Anoreg/BR) A prenuptial agreement is only necessary if the engaged couple opts for a property regime other than the legal regime, which is the partial community property regime or, in some special cases, the mandatory separation of property regime. In other words, only those who wish to marry under the separation of property regime, universal community property regime, final participation in the acquisitions, or a mixed property regime need to enter into a prenuptial agreement. (Anoreg/BR) The prenuptial agreement must be executed by public deed at the notary's office and subsequently taken to the civil registry office where the marriage will take place. After the marriage is celebrated, it must also be taken to the real estate registry office of the couple's first residence to be effective before third parties and recorded in the Registration of the couple's real estate. The property regime takes effect on the date of marriage and can only be changed with judicial authorization. (Anoreg/BR) In marriage, the parties' expression of intent regarding the choice of property regime must be expressed in the registration process. The option for the partial community property regime will be merely recorded in writing and will be recorded in the marriage certificate (LRP, art. 70, 7°), while the choice of any other regime must be made through a public instrument, under penalty of nullity and the corresponding application of the rules of partial community property (art. 1640, sole paragraph, final sentence). (Rafael Calmon) By legal requirement, a public deed is required for the validity of the prenuptial agreement and must necessarily precede the celebration of the marriage (...