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3rd Chamber’s Decision Establishes That The Ex-Spouse Who Is Not A Partner Has The Right To Dividends Until The Final Settlement Is Completed, Changing The Scenario Of Business Divorces.
A decision by the 3rd Chamber of the Superior Court of Justice (STJ) has altered the understanding of asset division in divorces involving business partnerships, bringing more legal certainty to a previously controversial situation. From now on, the spouse who does not formally participate in the company has the right to receive a share of the profits and dividends paid to the ex-partner who is a partner. This right extends throughout the period from the date of factual separation until the moment the share division is effectively settled, ensuring that the fruits of the common assets are divided fairly.
According to the portal Migalhas, the judgment, reported by Minister Nancy Andrighi, originated from a divorce case in which an ex-husband sought his share of the profits generated by his ex-wife’s shares in a company, acquired during the marriage.
The decision creates a new and important layer of asset protection for the ex-partner who has no direct ties to the business. In practice, it prevents the partner spouse from benefiting alone from the earnings of an asset that was built through the efforts or assets of both, ensuring that he shares in the fruits until the division is fully finalized.
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Asset Division: Know What Cannot Be Divided in Case of Divorce
What Motivated The 3rd Chamber’s Decision At STJ?
The specific case that reached the STJ (REsp 2.223.719) began when an ex-husband, after having his right to half of the shares of his ex-wife recognized, sought the court for an accounting of the corresponding amounts.
The lower courts, both the first-instance court and the São Paulo Court of Justice (TJ/SP), had determined that the calculation of his rights should have as a final marker the date of factual separation.
This limitation excluded him from any profits distributed after that period, even if the final settlement had not yet occurred.
Dissatisfied, the ex-husband appealed to the STJ with a central argument: the shares of the company were a common asset of the couple and, even after separation, he legally remained the “owner” of half of them until the settlement was completed.
Therefore, the right to half of the distributed profits remained valid, as dividends are direct fruits of this shareable asset.
He argued that limiting his right to the date of separation harmed him financially and generated unjust enrichment for the ex-wife, who continued to enjoy 100% of the earnings from an asset that was still partially his.
How Does The Right To Profits Work In Practice?
The rapporteur, Minister Nancy Andrighi, accepted the ex-husband’s argument, explaining that factual separation indeed ends the property regime, preventing newly acquired assets from being shared.
However, she clarified that, regarding the assets already built by the couple, a “condominium” is formed from the moment of separation.
In other words, the ex-partners become co-owners of the common assets until the division is effected.
It is as if they owned a rental property together: even when separated, both have the right to receive their share of the rent until the property is sold and the proceeds are divided.
Based on this logic, the minister applied Article 1.319 of the Civil Code, which establishes that each co-owner (coproprietor) is liable to the others for the fruits they collected from the common property.
In this case, the shares of the company are the “common property,” and the profits and dividends are the “fruits.” Therefore, the ex-spouse becomes a co-owner of the corporate shares and has the clear right to receive his share of the earnings generated by them.
This obligation to transfer persists until the final payment of his rights is made, at which point the condominium over the shares is finally closed.
The Concept of “Partner of The Partner”: A New Figure in Divorce
The STJ decision introduces an important concept to clarify the position of the non-partner ex-spouse, protecting both their rights and the stability of the company.
According to Minister Nancy Andrighi, he becomes an “anomalous shareholder” or, as defined by legal doctrine, a “partner of the partner.”
This means that the spouse who does not comprise the corporate framework does not acquire the right to participate in management, vote in meetings, or get involved in the company’s activities. His right is strictly patrimonial, focused only on receiving financial amounts.
This distinction is fundamental, as it preserves the principle of affectio societatis (the intention and personal bond of being associated) among the original partners. The business partnership is not obliged to admit a new partner against the will of the others, which could generate instability and conflicts.
The minister explained that a “sub-partnership” is established only between the ex-couple, governed by the rules of condominium (Article 1.319 combined with Article 1.027 of the Civil Code). Thus, the company continues paying the dividends fully to the partner named in the contract, who, in turn, is legally obligated to transfer half to the ex-partner.
And How Are These Values Calculated?
Another point discussed in the appeal was the methodology for assessing the value of the shares to be divided. The ex-husband advocated the use of “discounted cash flow,” a method that projects the company’s future profits to estimate its present value, as it better reflects the market potential of the business.
However, Minister Nancy Andrighi reaffirmed the consolidated jurisprudence of the STJ on the subject, emphasizing that the autonomy of the partners prevails. If the company’s articles of incorporation already provide a specific criterion for assessing rights in the case of a partner’s withdrawal, that criterion must be followed.
In the absence of a contractual clause, the law determines the path to avoid disputes. According to Article 606 of the Code of Civil Procedure (CPC), the criterion of the balance sheet prevails, which consists of an accounting evaluation to determine the real asset value of the shares at the time of dissolution.
This method is seen as safer and less speculative than cash flow, as it is based on a “snapshot” of the company’s assets at a specific moment. Therefore, the calculation of the amounts to be paid to the non-partner spouse will follow what is provided in the contract of the company or, in the absence of one, what the procedural law dictates, ensuring a technical and fair process.
Does this STJ decision change the way you view a divorce when a business is involved? Do you believe this rule is fair for both sides, for the partner spouse and for the one left out of the partnership? Share your opinion in the comments; we want to understand.
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