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Common-Law Marriage Ensures Property Rights Even Without Formal Registration, But Requires Proof of Cohabitation and May Generate Debates About the Beginning of the Relationship and Assets Included in the Division.
Living in a common-law marriage without going to the notary does not, by itself, take away the right to divide assets in case of separation.
According to Brazilian legislation, common-law marriage is recognized as a family entity and, for property purposes, follows the same regime that applies to most marriages: partial community property, provided that the cohabitation can be proven as public, continuous, long-lasting, and with the intent to form a family.
Legal Concept of Common-Law Marriage
The Civil Code defines common-law marriage as a public, continuous, and long-lasting cohabitation, established with the intent to form a family.
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There is no specific minimum duration required, nor is there an obligation to live at the same address, although cohabitation is an element that often reinforces the proof of this relationship.
In practice, what matters is demonstrating that the couple presents themselves socially as a family.
The couple shares everyday responsibilities, makes joint decisions, appears together in documents and records, and is recognized as such by relatives, friends, and the community.
Lawyer Ligia Oliveira, a family law specialist, summarizes this understanding by stating that “Brazilian legislation protects property rights in common-law marriage, regardless of formal documentation, as long as public, continuous, and long-lasting cohabitation with the intent to form a family is proven.”
Notary Registration and Legal Effects
Notary registration or the certificate of common-law marriage are not conditions for the existence of the union.
The relationship can be recognized legally even if it has never been formalized in a public document.
What the notary does is facilitate proof.
A declarative deed or a common-law marriage agreement puts in writing from when the cohabitation is recognized by the couple and, if they wish, which property regime they intend to adopt.
In the absence of a written contract, the legal rule prevails: the regime of partial community property applies.
Thus, someone who has lived in a common-law marriage for five years without any paperwork but can prove the relationship has, in principle, the same property rights they would have if they had formalized the union at the notary, except for specific situations provided by law, such as cases of mandatory separation of property for individuals aged 70 years or older.
How Asset Division Works
In partial community property, the regime automatically applied to common-law marriage when there is no written contract to the contrary, the assets acquired for consideration during cohabitation are shared.
The law presumes the so-called common effort, meaning that the wealth built during the union belongs to both parties equally.
According to Ligia Oliveira, “all assets acquired during the 5 years of the union will be considered communal property, regardless of who acquires or contributes financially to the acquisition.”
This applies to real estate, such as houses and land.
It also applies to personal property, like appliances, household furniture, vehicles, bank account funds, and business shares.
On the other hand, as a rule, assets acquired before the start of the common-law marriage are excluded from division, as long as they have not been substantially increased in value by the couple’s common investment.
Inheritance and gifts made to only one of the partners, especially when registered as private property, also do not enter the division.
These situations are evaluated on a case-by-case basis, considering documents, financial records, and testimonies.
Necessary Proof in Case of Separation
When separation occurs amicably, the couple can formalize the dissolution of the common-law marriage at the notary, provided there are no minor or incapacitated children and that there is consensus regarding the division of assets.
In this extrajudicial modality, proof of the union is usually simpler, especially when there are documents or a prior deed.
If there is a conflict regarding the recognition of the common-law marriage or about which assets should be divided, the discussion is taken to court.
Judges analyze a set of evidence that may include purchase and sale contracts, proof of address, joint accounts, income tax declarations, family health plan, photos, messages, and witnesses.
The more elements indicate public, continuous, long-lasting cohabitation recognized as a family, the greater the likelihood of recognizing the common-law marriage for division purposes.
Differences Between Common-Law Marriage and Marriage
From a property perspective, when marriage is celebrated without a prenuptial agreement, the regime of partial community property also applies.
This is the same regime that generally applies to common-law marriage. The main difference lies in formalization.
In marriage, the marital society begins automatically on the date of registration at the notary.
In common-law marriage, it is often necessary to define legally when the relationship became stable, which influences which assets are included in the division.
Another difference is that, in both marriage and common-law marriage, the couple can opt for a different property regime, such as total separation or universal community.
This choice, however, requires a valid written document. Without this instrument, the partial community property applies.
Property Organization and Conflict Prevention
From a legal standpoint, the answer for those who have lived in a common-law marriage for five years and have never formalized the relationship is clear.
There is a right to the division of assets acquired during the cohabitation, in the same manner as a marriage under the regime of partial community property, provided that the union can be proven.
Although formalization is not mandatory, family law attorneys recommend some form of registration or document organization to prevent conflicts between the couple and between heirs.
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