Portuguese 
English 
Spanish 
6 min of reading 
0 comments 
Decision of the Superior Court of Justice Redefines How Debts Incurred During Marriage Under Partial Community Property Can Affect Both Spouses, Even Without Joint Signature, and Changes Understanding of Property Liability for Couples.
The 3rd Panel of the Superior Court of Justice (STJ) ruled that debts incurred during marriage under the partial community property regime can be charged to either spouse, even if only one participated in the transaction.
With this understanding, the panel authorized the inclusion of the wife of a debtor in the passive pole of execution of an extrajudicial title, despite her not having signed the checks that gave rise to the charge.
The case involves debts arising from checks issued by the husband in 2021.
-
A little-known rule in the Civil Code allows for other relatives to be called to the support action when the person who should pay first cannot cover everything alone.
-
Government enacts new law requiring ex-couples to share custody of pets in case of divorce, with rules for time of cohabitation, veterinary expenses, and loss of ownership in cases of animal abuse.
-
Justice condemns truck driver to pay R$ 87,000 after leaving truck with soybean cargo unattended at a gas station for two days: insurance company refused to cover and the loss fell entirely on the driver.
-
Considered Trump’s last ally in Europe, Giorgia Meloni has just suspended a military agreement of over 20 years with Israel and rejected Italy’s entry into the blockade of Hormuz.
As attempts to locate assets in his name failed, the creditor requested the inclusion of the wife in the execution.
The couple has been married since 2010 under the regime of partial community property.
The first-instance court and the Court of Justice of Goiás (TJ-GO) had rejected the measure, understanding that it was not possible to extend property liability to the spouse who did not incur the debt.
However, at the STJ, the prevailing interpretation was that obligations incurred during the life together and related to household economics are jointly liable for both.
The rapporteur, Minister Nancy Andrighi, granted the creditor’s appeal, allowing the inclusion of the wife in the executive process.
Legal Basis: What Do the Articles of the Civil Code Say
According to the decision, the articles 1.643 and 1.644 of the Civil Code establish that expenses incurred for the benefit of the household involve the joint liability of the spouses.
In other words, the credit can be pursued against either of them, regardless of who formalized the transaction.
The rapporteur emphasized that these rules bring a presumption of mutual consent for acts performed in favor of the family unit.
Thus, if the debt was incurred during the union and is linked to family maintenance, both are responsible.
What Changes in Practice for Couples in Partial Community Property
With the new understanding, creditors gain support to include the spouse of the debtor directly in the passive pole of actions addressing obligations generated during the marriage and related to domestic life, even without joint signature.
In practice, the collection can reach the couple’s assets or the other spouse’s, respecting the procedural rules and any restrictions that the court may impose.
This does not mean, however, automatic and unrestricted liability.
The decision emphasizes that it is up to the non-signing spouse to demonstrate that the debt did not benefit the family or point out a specific reason that prevents the seizure of their assets.
The burden of proof, therefore, lies with the one who seeks to exempt themselves from execution.
Arguments of the Creditor and Reversal in Relation to Local Instances
The creditor argued that, in partial community property, everything incurred for domestic economics binds both spouses.
The 3rd Panel accepted this thesis and granted appeal to the special appeal, overturning the previous decisions.
Previously, the ordinary instances had understood that the wife could not be liable because she did not participate in the legal transaction that generated the checks.
By reversing this understanding, the STJ consolidated that the division of responsibilities in marriage, for execution purposes, does not depend exclusively on signature or formal participation in the title, as long as it concerns an expense categorized as an interest of the family unit.
What the Rapporteur Said
In her vote, Nancy Andrighi pointed out that civil legislation provides for solidarity when it comes to debts related to domestic economics.
According to the minister, the norm establishes a presumption that dispenses with proof of specific consent, allowing the collection of any of the spouses.
She added that, if there is disagreement regarding the nature of the expense, it will be up to the spouse to contest the execution by demonstrating the absence of family benefit.
The minister noted, in summary, that “the spouse who did not participate in the legal transaction entered into by the other is legitimized to appear in the passive pole of the execution initiated by the creditor”, and may ultimately be excluded from liability if they prove that the debt did not benefit the family.
This is a burden of proof for the spouse seeking to rebut the legal presumption.
Limits and Next Procedural Steps
The vote did not address in detail the adoption of specific coercive measures against the debtor’s wife.
This definition will rest with the court of execution, which will assess the nature of the assets, the share, the origin of the wealth, and any communication or lack thereof with the debt in question.
Thus, the decision enables the inclusion in the passive pole, but the concrete extension of property liability will depend on case-by-case examination.
Even though the partial community property regime generally communicates assets acquired onerously during the marriage, the judicial seizure must respect the protective rules of division of property and the need for the debt to relate to domestic economics.
In situations where the expense is shown to be purely personal, without benefit to the family unit, it is possible to exclude the other spouse’s liability with appropriate proof.
Impact on Creditors, Debtors, and the Market
The decision of the 3rd Panel is likely to influence forensic practice and the behavior of creditors in collections involving couples.
For those providing credit, the possibility of directing execution at both spouses, when legal requirements are met, broadens the avenues for satisfaction of the debt.
For those incurring obligations, the need to document the purpose of the expense increases, especially when there is no consensus between the parties.
In the context of marriages, the understanding reinforces that joint financial management also implies sharing risks.
Conversely, the right to defense of the non-signing spouse remains guaranteed, who can demonstrate that the transaction was not intended for family support or should not affect certain assets.
Why the Topic Matters Beyond the Specific Case
The controversy judged by the STJ resonates with the daily lives of couples managing housing, education, health, and consumption expenses.
In numerous family arrangements, only one of the spouses appears formally as the contractor.
The reading of the articles 1.643 and 1.644 as a basis for solidarity, made by the 3rd Panel, offers a national benchmark for lower courts when analyzing requests for the inclusion of spouses in executions.
In the meantime, the requirement for opposing proof to rebut solidarity tends to organize the discussion: the creditor does not need to prove specific consent; the spouse contesting must demonstrate the absence of family benefit.
This reversal of procedural perspective aligns with the purpose of protecting household economics that inspires applicable civil norms.
What to Observe in Similar Cases
Future proceedings with comparable facts should consider three points.
First, the date and context of the debt, to verify if it arose during the marriage.
Next, the purpose of the obligation, distinguishing personal expenses from those related to household life.
Finally, the asset evaluation, including whether the affected property communicated and the delimitation of the share.
From these vectors, judges will be able to calibrate coercive measures, safeguarding rights and preventing abuses.
Couples adopting partial community property need to pay extra attention to the impact of contracts, checks, and other obligations made in daily life, even when only one signs.
Do you think that the presumption of family benefit is sufficient to balance creditor protection and preservation of the non-signing spouse’s assets?
Seja o primeiro a reagir!