The bill to reform the Civil Code suggests that the appreciation of shares or equity stakes, when they occur during the marriage, should be taken into account in the division of the couple’s assets, even if the shares were acquired before they were married. However, this suggestion is contrary to the understanding of the Superior Court of Justice (STJ).
The division takes place when the marital relationship ends. The committee’s suggestion deals in particular with the partial community of property regime, in which the assets acquired by each spouse during the marriage are considered to belong to the couple and, in the event of separation, are divided equally between them.
In this sense, the draft amendment to the Civil Code contemplates the scenario in which someone acquires shares in a company, subsequently marries under the partial community of property regime and then sees the value of the shares increase. According to the suggested text, if there is a divorce, this increase in value will be included in the division.
However, the STJ has held the opposite view for years, in the sense that the increase in value of these shares is not part of the couple’s joint assets and should not be shared, as it is the result of an economic phenomenon, not the partner’s efforts (Special Appeal No. 1.173.931, judged in 2013).
On that occasion, the justices argued that there is no increase in marital assets when the company’s profits are not redistributed to the partners. Therefore, they considered that “the quotas or shares received as a result of the capitalization of reserves and profits constitute the product of the business company” and should not be included in the marital division.
Faced with the clash between the proposal to reform the Civil Code, which seeks to include the valuation of business shares in the division of the assets of couples in the partial communion regime, and the consolidated understanding of the STJ, the complexity and challenges involved in this issue are evident.
While the committee of jurists argues for the protection of the non-partner spouse and for fairness in the division of gains made during cohabitation, the STJ upholds an interpretation based on the distinction between personal and business assets.
Although the proposal aims to modernize and adjust legislation to the contemporary dynamics of family and economic relations, the need for in-depth debate and harmonization of these interests is crucial to guarantee legal certainty and justice in decisions related to the division of assets in divorce cases.
We are attentive to new developments in case law and discussions in all areas of the Judiciary, in order to provide adequate and effective advice to our clients.
