Credit Recovery | Brazilian Superior Court Validates Inclusion of Spouse Married Under Partial Community Property Regime in Extrajudicial Enforcement Proceeding: 3 Key Points for Creditors

The Superior Court of Justice (STJ) decided that a spouse may be included as a defendant in the enforcement of an extrajudicial title when the debt was incurred during the marriage, under the partial community property regime.

The appeal discussed the possibility of including the debtor’s wife in the enforcement of a debt contracted in 2021, when the couple had already been married since 2010 under the partial community property regime. The lower court and the Court of Appeals of São Paulo (TJSP) had denied the request for inclusion, and the case reached the STJ through a special appeal.

When ruling on the case, STJ established that:

1. For debts contracted by one of the spouses or former spouses while the community property regime is in effect (that is, before the dissolution of the marital bond), the spouse or former spouse who was married under such regime – although not participating in the legal transaction – may be included as a defendant in the enforcement proceeding.

2. For debts contracted by one of the spouses or former spouses after the dissolution of the community property regime (that is, after the marital bond has been dissolved), the spouse or former spouse who was married under such regime – if not a party to the legal transaction – may not be included as a defendant.

3. The date the debt was contracted – not the date of divorce, division of assets, probate, or initiation of enforcement – determines passive standing for the enforcement.

4. The inclusion of the spouse as a defendant does not automatically entail responsibility for payment of the debt. Once served, the spouse may demonstrate that the obligation did not benefit the family unit or that certain assets were not shared, even under the community property regime, under the terms of art. 1.668 of the Brazilian Civil Code.

By validating the inclusion of the spouse as a defendant in the enforcement of an extrajudicial title, the STJ reinforces the protection of creditors’ rights. Although such inclusion does not automatically generate liability, it strengthens the creditor’s position by allowing them to seek satisfaction directly from the common assets, requiring the spouse to demonstrate that the debt did not benefit the family. Additionally, the mere inclusion of the spouse serves as a powerful psychological and negotiation tool, encouraging the debtor and their family to promptly settle the debt to avoid the risk of having common assets restrained.