Even in the case of total separation of property, the former may be entitled to property

When getting married, the bride and groom need to choose a regime of separation of property, which are four: çpartial community of property, universal community of property, total separation of property and final participation in the claims🇧🇷 With the insertion of women in the labor market, many opt for the regime of total separation of property.

In this option, the equity belongs only to the name to which it is linked. There is, however, a precedent, as explained by the lawyer Anderson Albuquerque, from the Albuquerque & Alvarenga office.

“Sumula 377 of the Federal Supreme Court says that ‘under the regime of legal separation of property, those acquired during the marriage are communicated’”. That is, goods acquired during the union can indeed be shared. We spoke with the expert to better understand how the regimen works.

Does getting married in a regime of total separation of property mean that there is no right to the spouse’s assets?

A myth was created that in the total separation of assets the spouse is not entitled to anything after the separation and this is not true. A woman who marries does not have material rights over her husband’s assets unless there is direct or indirect participation in the increase in assets.

How does it work in practice?

The woman has the right to seek proportional participation on the equity increase in which she had direct or indirect participation. She just has no right to what already belonged to her husband before marriage or if there was no participation in what was built afterwards. If the husband has a profession and the wife helps directly or indirectly, as most women usually do, she has the right to participate, yes.

When is this right not available?

When there is no participation of the woman in the composition of the assets after the beginning of the bond or in the assets that were already owned by the spouse. As an example, cases in which both the man and the woman work, without any kind of mutual cooperation between the couple, without any collaboration in the activity of the other, can be mentioned.

Why is the woman usually the most harmed party?

Imagine that, after twenty years of marriage, the woman who gave all the emotional support to the man during the period ends the relationship without any rights. She, who took care of the environment in which they lived, the family and the tasks, as important as the work performed by the man outside the home, would be abandoned. It would be very unfair. In this scenario, the man could marry another woman and start a new family, enjoying the assets gained with the joint effort of his former partner, while she stopped working and, consequently, building her individual assets. The opposite is also valid: the man can claim part of the property earned by his wife in certain situations. What happens is that, in the vast majority of cases, the victim is the woman.

How can women prove their participation in the construction of assets?

Every woman knows the importance of family support. Taking care of the house and the children, if any, are ways of ensuring peace in the home while the man works, for example. These are already forms of contribution. Proof can be done through text messages, emails, witnesses, photographs… there are several evidence mechanisms, which is why the strategy is drawn up individually, case by case.

Why do few women know about this right?

After the separation, the woman is usually helpless, without financial conditions to hire a lawyer. It is necessary to popularize women’s rights, make them easily accessible. Many men commit infractions knowingly or unknowingly because they know there will be no legal punishment. In addition, there is a fear on the part of women of being labeled as a gold digger. My objective is to help you to know your rights so that they are, in fact, valid. Acquired rights must be clear in women’s minds so that they can claim them.

In the event of the death of the spouse, will the woman be entitled to the inheritance under the regime of total separation of property?

Yes, the woman will be entitled to the inheritance because she is a necessary heir. However, in the event that the spouse has children from another marriage or even other types of heirs, the issue may be discussed.

After the separation, is the woman entitled to receive alimony even in case of total separation of property?

When a woman is young and capable, she is entitled to a pension at least until she is able to enter the labor market. If the woman is older or has health problems that make her unable to work, she will be entitled to the pension for life. The right is lost if she marries again or receives a fortune that ensures her survival. It should be noted that women are receiving less and less alimony because of their insertion in the labor market. Today, the courts understand that the pension was not made to encourage idleness, but to ensure the resumption of professional activities.