Portuguese 
English 
Spanish 
4 min of reading 
11 comments 
STJ Confirms: Ex-Spouse Who Remains Alone in Common Property Can Pay Rent to the Other, Except When the Property Serves as Housing for Minor Children.
The marital separation does not end just an emotional relationship — it also requires defining the destination of shared assets. One of the most delicate points is what happens when one of the ex-spouses remains alone in the couple’s property. In these cases, the established jurisprudence of the Superior Court of Justice (STJ) has determined that the sole occupant can be ordered to compensate the other, in the form of proportional rent, as it prevents the co-owner from exercising their right of use or enjoyment.
This obligation, however, is not absolute. The STJ has established an important exception: no rent payment is due when the property serves as housing for the couple’s minor children, as in these cases, the social function of housing and the protection of children and adolescents prevail.
What the Law Says About the Use of Common Property After Separation
According to the Civil Code, art. 1,319, each co-owner has the right to use the property according to its purpose, provided that they do not exclude the other co-owner.
-
Luciano Hang flies a helicopter that costs more than most buildings in Balneário Camboriú, and the list of technologies of this R$ 50 million machine seems straight out of a spy movie.
-
India built a 22-kilometer bridge over the sea to connect Mumbai — and even before its inauguration, a magnitude 3.5 earthquake tested the structure while workers were still on it.
-
The Sagrada Família in Barcelona has completed its main structure after 144 years of construction — exactly 100 years after Gaudí’s death, and the tallest tower reaches 172 meters.
-
Sleeping in the coldest city in Brazil seemed like just another camping challenge, until the rain intensified, the hail fell, the meal failed, and the cold turned the night into a test of endurance.
In practice, when one of the ex-spouses begins to reside alone in the property, it deprives the other of exercising this right.
Furthermore, art. 884 of the Civil Code addresses the prohibition of unjust enrichment, the basis for decisions that establish compensation.
The ex-spouse who exclusively enjoys the common property without paying anything to the other would be unjustly enriching themselves at the expense of the excluded co-owner.
Understanding of the STJ Regarding Rent Between Ex-Spouses
The jurisprudence of the STJ has already solidified this understanding. In 2021, the Third Chamber decided that the exclusive use of the common property by one of the ex-spouses allows for the establishment of rent in favor of the other, provided that there is formal opposition.
The court considered that, from the moment there is unequivocal awareness of the co-owner’s disagreement, the obligation to compensate is established.
However, the same STJ also recognized in recent cases that when the property serves as housing for minor children, there is no obligation for rent. This is because the use fulfills the social function of property and the parents’ duty to ensure appropriate housing for their children.
The absolute priority granted by art. 227 of the Federal Constitution and the Statute of Children and Adolescents (ECA) underpins this exception.
When Justice Orders Rent Payment and When It Does Not
The most common scenarios in which the Justice system determines the payment of rent between ex-spouses are:
- When there are no minor children residing in the property;
- When there is explicit opposition from the co-owner, whether in a divorce action or in an extrajudicial notification;
- When the sole occupant prevents the other from using the property or receiving income from it.
On the other hand, cases in which no rent is due involve:
- Situations where the property is used as the primary residence for minor children;
- When the exclusive possession meets a provisional judicial decision regarding custody or alimony;
- When there is an agreement between the parties allowing use without payment.
Practical Examples Judged in Courts
In a 2022 case, the STJ confirmed the condemnation of an ex-husband to pay rent equivalent to 50% of the market value of the property where he remained alone after the separation. The ex-wife had expressed formal opposition, which established the right to compensation.
In 2023, another ruling reaffirmed the exception: a mother who remained in the property with minor children was not required to pay rent to the ex-husband.
The court understood that requiring the mother to compensate would undermine the protection of the minors, countering constitutional principles.
Experts Explain the Impacts of the Decision
According to family law professor Maria Berenice Dias, “rent between ex-spouses is not a penalty, but a compensation for the exclusive enjoyment of a common asset. However, it cannot supersede the fundamental right of children to housing.”
Lawyer and professor Flávio Tartuce emphasizes that “jurisprudence balances two values: the protection of co-ownership and the dignity of minor children. Whenever there is a conflict, the priority is with the child.”
These positions reflect the STJ’s logic: rent is the rule, but the exception exists to protect the most vulnerable.
Balance Between Co-ownership and Family Protection
The definition of the use of property after divorce demonstrates how Family Law and Property Law need to communicate.
The ex-spouse who remains alone in the asset should be aware that, except when the property is housing for minor children, they may be ordered to pay rent to the other.
This solution prevents unjust enrichment, preserves asset equality among co-owners, and, at the same time, ensures that the principle of full protection of children is not violated. The message from the Justice system is clear: property matters, but housing and the dignity of children matter more.
Me separei por traição do meu cônjuge, e abuso moral, agressão verbal e etc…, tive que sair de casa pra pagar aluguel , não dava pra continuar me dando lá, porque tava ficando perigoso as ameaças dele, tenho uma filha deficiente auditiva que mora comigo, comigo devo proceder
O problema é que vc saiu do imóvel, se vc tivesse ficado, com essa nova orientação e dependendo do caso, vc não precisaria pagar aluguel da sua parte a ele.
Boa tarde, e no caso de separação, com acordo firmado em cartório, onde ambas as partes se reconhecem como proprietários do imóvel e nesse caso a ex-mulher continua a resistir no imóvel de comum acordo (também registardo nesse mesmo acordo) porém passados mais de 8 anos desse acordo, o ex- marido começa a ameaçr com a exigência de aluguel, a justiça ainda sim pode favorecer o ex-marido??
Além do imóvel, os dois possuem 2 lojas, que pelo acordo, seria uma de cada um e o ex-marido fica com as duas alegando que como a ex não paga o aluguel, dá a ele o direito de ficar com as lojas, mesmo que no acordo do cartório isso não faça parte do acordo. O ex pode fazer isso??
Só casa ou se junta quem é ****! O mundo terminará com fome, miséria e sede. Guerra, e não mais procriação do ser humano! Agradeça a esquerdopatia comunista, agenda woke, a pouca vergonha e o manto do Inimigo das ****, que, já domina o mundo e sorri, de seu trono nas profundezas do inferno!