Marriage and mortgage And the law?

 Under the Criminal Code / 2002, even if the marriage separated the assets previously, the mortgage waives the marital permission




In transactions that came into effect after the Civil Code of 2002 came into force, the rule of Article 1647, Section 1 - which provides for exemption from marital license as a condition of the effectiveness of the mortgage in the absolute separation system - applies. Goods - although the marriage took place under the Civil Act of 1916.


The understanding was determined by the third body of the Supreme Court of Justice (STJ) when reforming the ruling of the Court of Justice of Paraiba (TJPB), which, due to the lack of authorization of the wives of the partners of the company. The mortgaged mortgage was declared invalid as collateral at the time of entering into an industrial credit agreement.  


For TJPB, since marriages were conducted under cc/1916 provisions, the rules of this law must be complied with, including with regard to the need to approve the guarantee, even in the case of asset separation.



The Special Appeals Rapporteur of the Creditor Bank, Minister Nancy Andrege, noted that Article 1,687 of CC/2002 states that, under the provision of the separation of assets, the assets will remain under the exclusive management of each spouse, who may act freely or register them at a real expense. However, the Minister also pointed out that according to article 2.039 of the same law, the property system in marriages celebrated under CC/1916 was established.


According to the Minister, article 2.039, when establishing a transitional rule with regard to the property system, was intended to control family relations between spouses from the perspective of inheritance, and to regulate how, for example, asset sharing when the property is dissolved. Marital bond.


No effect.

For this reason, it is understood that it will not be possible to conclude that article 2.039 of CC/2002 must affect, from the perspective of the time law and the definition of applicable legislation, the hypotheses in which marital permission should be granted, where this institute, "although it is linked to the property system (because it ultimately aims to protect the assets of the spouses), it is in fact a condition for the effectiveness of the legal work whose validity is examined."


"In other words, it is correct to emphasize that in the case of a marriage held under CC/1916 under the traditional asset separation system, only legal transactions concluded under repealed legislation will be allowed to apply the rule of Article 235, 1, of CC/1916 (which foresaw the need for marriage permission as a condition of the effectiveness of the mortgage, regardless of the property system) - the Minister explained.


In the case of case records, since the work that was sought to invalidate it was completed in 2009 - i.e., already valid in CC / 2002 - the rapporteur concluded that the rule of article 1647, Section 1, of the current law. The law, which does not require a marriage license, must be applied to a mortgage when the marriage, even under CC/1916, has established a traditional separation system of assets.