By Márcio Martins Bonilha Filho
The rule of mandatory separation of the property system, imposed on couples, who seek to celebrate the marriage, despite being in a suspensive cause, does not lead to the impossibility of considering the drawing up of a public deed of marriage contract, expressly contemplating the removal of the effects of Precedent no. 377, of the Supreme Federal Court.
Besides being legitimate and pertinent, the public deed of prenuptial agreement, providing on the dismissal of the effects of the referred Precedent, cannot fail to generate its registration consequences before the competent Civil Registry of Natural Persons.
At first, it should be pointed out that numerous precedents consider valid and in full applicability the Enunciation 377, of the STF, consisting of the rule according to which "in the regime of legal separation of property, the property acquired during the marriage is communicated".
Our courts undoubtedly recognize the validity and have been systematically deciding for the maintenance of the application of Precedent 377, of the Federal Supreme Court, according to the majority and recent understanding.
In addition to the jurisprudential precedents, proclaiming the effectiveness of the aforementioned precept of the C. STF, in the jurisdictional scope of Family and Succession Law, countless judgments have faced the issue and, equally, have rendered decisions in the administrative field, thus including the Permanent Division of Civil Registries of Natural Persons, of Notary Public Notaries and of Real Estate Registries, concluding, practically unanimously, that the aforementioned Precedent has not been revoked.
The Civil Code stipulates to those who will contract marriage, with incidence of suspensive cause, restrictions and limitations.
This is so because a divorced couple, who has not shared the assets of the first marriage, must marry under the rule of the obligatory separation of property.
That conclusion is uncontroversial.
The law induces the unavoidable observance of this property system, and there is no obstacle for the contracting parties, compelled to do so, to establish that, in this scenario, they do not intend to be subject to the consequences of said Precedent.
In other words, the couple subjected to the separate property system, under the circumstances provided in articles 1641 and 1523, both of the Civil Code, may resort to the Notary Public to draw up the public deed of the prenuptial agreement, establishing that, in addition to the system legally imposed by the legislator, there will be the ruling out of the mentioned Precedent no. 377.
This, absolutely, does not induce the conclusion that the nuptials will be using artifice to subvert the legal regime of marriage.
It is not a matter of cogitating an undue modification of that regime imposed by law, in view of the condition of the spouses, but, within the strict dictum of the limitation of the property rules reserved for marriage, to establish a convention that does not affect, in essence, the observance of the total separation of property regime.
By opting for the dismissal of Precedent 377, of the STF, the couple signals that it will obey the rule of separation of property and that, during the course of the marital relationship, its effects will not apply.
One should not lose sight of that the STJ has already consolidated understanding in the sense that, even with the revocation of article 259, of the Civil Code of 1916, Precedent 377 produces effects.
Not for another reason, contemporary civilists, in the vanguard of modern Family Law, have already discussed the subject.
Flavio Tartuce and José Fernando Simão, addressing practical and doctrinal aspects on the subject, demonstrated with legal superiority that the separation of property implies the non-communion, the absence of moiety and that all assets of the couple are private (only his or hers). The Precedent no. 377 created the partial communion in a regime called separation.
In an article published by IBDFAM, on February 13, 2018, professor José Fernando Simão rightly defends that the spouses may establish the total separation of property and that the prenuptial agreement establishing a more radical separation than the mandatory one is valid and possible, "rectius": removal of the referred Precedent.
The Internal Affairs Office of the Court of Justice of the State of Pernambuco, pursuant to Provision 8/2016, established the rule set forth in Article 664-A:
"In the regime of legal or obligatory separation of property, in the event of article 1641, item II, of the Civil Code, the civil registry official must inform the spouses of the possibility of ruling out the application of Precedent 377 of the STF, by means of a prenuptial agreement.
The registry officer shall clarify the exact limits of the effects of the obligatory separate property regime, whereby property acquired onerously during the marriage shall be communicated".
Incidentally, the aforementioned Board of Directors, when issuing the aforementioned Ruling, at the initiative of Justice Jones Figueiredo Alves, invoked, in the judicious "Considerations", doctrinal studies, highlighting, among others: Zeno Veloso, Mario Luiz Delgado, José Fernando Simão and Flavio Tartuce.
In the scope of the State of São Paulo, the General Registry of Justice, in Case No. 1065469-74.2017.8.26.0100, granted the administrative appeal, for the purpose of continuing the habilitation for marriage, with adoption of the obligatory separate property system, prevailing the prenuptial agreement that stipulated the absolute incommunicability of the aquest.
Commenting on the CGJ's decision, Flavio Tartuce said that such guideline represents a major advance in valuing private autonomy and individual freedom.
In this scenario, despite the absence of express normative provision in the State of São Paulo, we must conclude that there is no obstacle for the Notaries Public to draw up a public deed of prenuptial agreement, in the interest of the bride and groom who will marry under the obligatory obligation of property system, nor is there an apt or legitimate obstacle for the Officer of the Civil Registry of Natural Persons to refuse to proceed with the qualification of marriage with the adoption of the obligatory separate system of property, the prenuptial agreement that stipulates the absolute incommunicability of the aquest remains.
In summary, in a time of Pandemic, social isolation, COVID-19, of tragic and unusual consequences, it is necessary to consider the adoption of the prenuptial agreement, with removal of the effects of Precedent 377, of the C. STF, in the event of marriage with adoption of the obligatory separate system of property, the desired vaccine to protect the lawful interest of the couple in the destination of their assets.
