Considering that the regime adopted by the couple was communion of acquired property, as this is currently the regime applied to couples who do not make a prenuptial agreement and to whom the mandatory regime of separation of property is not applicable, for the purposes of division after divorce, the following assets make part of the marital property, and are therefore considered joint:
a) The spouses' earnings from their work (whether this is income from subordinate work or self-employment, or even profits from business activity);
b) Assets acquired by the spouses during the marriage, which are not excluded by law (for example: Retirement Savings Plans, shareholdings, among other things).
However, it is important to note that, regarding shareholdings, the one who signed the company contract or, in the case of acquisition after the contract, the one through whom the shareholding came to the couple, will be considered a partner in relations with the company. Thus, if the marriage is dissolved by divorce, the member of the couple who signed the contract or acquired the shareholding will naturally continue to be a partner until, through the division of all the couple's assets, another situation arises regarding the ownership of the shareholding.
On the other hand, the following assets are “separate or individual property" of each spouse:
a) The assets that each of them has at the time of the marriage;
b) Assets that come to them after the marriage by succession (inheritance) or donation;
c) Assets acquired during the marriage as a result of a prior right, such as:
i) Property acquired as a result of prior rights over illiquid patrimony shared after the marriage (for example, property acquired through the partition of an inheritance that was not formalized until after the marriage);
ii) Assets acquired through usucaption based on possession that began before the marriage (in other words, the fact that the usucaption period ended during the marriage does not transform an asset into a marital property and it continues to have the nature of an individual property, as long as the possession began before the marriage was celebrated);
iii) Assets bought before the marriage with retention of title;
iv) property acquired in the exercise of a right of preference based on a situation that already existed at the time of the marriage (for example, if one spouse has the right of preference over a family home that has been rented out by him before the marriage, it is he who will be the tenant and may exercise the right to purchase the house, since the lease, entered into before the marriage, is incommunicable).
In addition, the following assets and/or rights are also considered to be the property of each spouse (individual property), as they are expressly excluded from the marital property:
a) Assets donated or left in a will, with an incommunicability clause (this is because there are situations in which the donation is made for the benefit of the couple and with a specific communicability clause);
b) Assets donated or left with a reversionary or fiduciary clause, unless the clause has expired;
c) Usufruct, use or habitation, and other strictly personal rights;
d) Compensation due for events occurring in relation to the person of each of the spouses or their own property (example: compensation in replacement of reinstatement in the former job position);
e) Insurance policies taken out on behalf of each spouse or to cover risks to their own property;
f) The dresses, clothes and other objects of personal and exclusive use of each spouse, as well as their certificates and correspondence;
g) Any family items (such as photo albums) of little economic value;
h) Pets owned by each spouse at the time of the marriage.
Nevertheless, and despite the above, the fruits and useful improvements resulting from the "individual property" mentioned are considered marital property and, for this reason, should form part of the joint assets for the purposes of division after divorce. For example, if you rent out a property that was acquired before the marriage (individual property), the rent you receive is part of the marital joint assets.
The following are also considered separate or individual property:
a) The accessions (an accession occurs when the thing owned by someone is joined to and incorporates another thing that did not belong to them);
b) The materials resulting from the demolition or destruction of one's own property;
c) The part of the treasure acquired by the spouse as owner;
d) The amortization premiums of credit instruments or other securities owned by one of the spouses, as well as securities acquired by virtue of a subscription right inherent to them.
Assets acquired by virtue of ownership of one's own property, which cannot be the fruits of such assets, are also considered to be one's own, without prejudice to any compensation due to the community/marital property. For example, a vehicle acquired during the marriage with money from the sale of an old vehicle that was already owned by one of the spouses before the marriage, is also considered to be the spouse's own property and is not included in the list of assets that will be divided after a divorce.
And what about assets acquired in part with money or "individual property" of one's spouse and in another part with joint money or "marital property", how do we know whether to include them in the list of assets that will be divided after divorce?
Assets acquired in part with one of the spouses' own money or individual property and in another part with joint money or marital property shall take the nature of the more valuable of the two benefits.
However, there is always a compensation owed by one party to the other depending on which party receives the property (since the asset can be qualified as an individual asset or as a marital asset), which will be determined at the time of the divorce and the division of assets following the divorce.
Given the complexity of the theme and the importance of this qualification in terms of assets, it is essential to have experienced legal advice in this area, such as Belzuz Abogados S.L.P. - Sucursal em Portugal, to ensure a quick and efficient process.
Belzuz Abogados SLP
A presente Nota Informativa destina-se a ser distribuída entre Clientes e Colegas e a informaçăo nela contida é prestada de forma geral e abstracta, năo devendo servir de base para qualquer tomada de decisăo sem assistęncia profissional qualificada e dirigida ao caso concreto. O conteúdo desta Nota Informativa năo pode ser utilizada, ainda que parcialmente, para outros fins, nem difundida a terceiros sem a autorizaçăo prévia desta Sociedade. O objectivo desta advertęncia é evitar a incorrecta ou desleal utilizaçăo deste documento e da informaçăo, questőes e conclusőes nele contidas.
