The marriage, as a contractual legal reality, produces a series of personal, patrimonial, and succession effects from the moment it is celebrated.
Regarding assets, spouses can choose one of three property regimes provided by the Civil Code:
(I) Community of acquisitions;
(II) General community of property;
(III) Separation of property.
Regarding the regime of community of acquisitions, the legislator has established that there must be a temporal distinction between the assets (both assets and liabilities) existing before the marriage and those acquired during the marriage.
In other words, under the regime of community of acquisitions, spouses share equally in the property acquired during the marriage. This applies even if the contributions of each are unequal, such as when one spouse earns more from their work than the other.
It has been agreed that "each gives what they have," meaning that each member of the couple contributes to the union according to their possibilities.
It is therefore important to distinguish between SEPARATE PROPERTY and COMMUNITY PROPERTY:
SEPARATE PROPERTY:
Separate property refers to the assets that each spouse acquired before the marriage.
Assets received after marriage through inheritance (succession) or donation.
For example: Tiago and Maria married in 2010. In 2018, Tiago receives an inheritance. The assets, including money, from the inheritance Tiago received are his separate property and do not become part of the community.
Assets acquired after marriage but originating from prior personal rights.
For example: Ana suffered a work accident before marriage, but she only receives the corresponding compensation after the marriage. The compensation money she receives is considered her separate property.
The proceeds from the sale of separate property.
For example: Francisca sells the car she bought before marriage. The money obtained from the sale will be considered her separate property, even if the payment is made after the marriage.
Assets purchased with money earned by either spouse before the marriage, provided the source of the money is indicated in the purchase document (invoice, receipt, or equivalent document).
For example: Paulo and Eva go to a store and buy furniture for their home worth €5,000. However, Eva pays for the furniture with money she earned before the marriage. Only if it is properly stated on the invoice or receipt that the furniture was bought with money Eva earned before the marriage can the furniture be considered her separate property.
COMMUNITY PROPERTY:
After the marriage, any assets acquired by either spouse are considered community property.
For example: Rita and João married in 2017. Before the wedding, João owned a car, and Rita had €12,000 in her bank account. After the wedding, they bought a property together. So, the car is João's separate property, the €12,000 in the bank account is Rita's separate property, and the property they bought is community property.
Other examples of community property include:
The income from the work of the spouses (after the marriage), whether from salaried employment (permanent or temporary contracts), freelance work (self-employment), profits from shares in companies (e.g., partnerships or corporations), or any other source of income.
Assets acquired by the spouses after the marriage and as long as the marriage lasts.
If there is any doubt about whether an asset is community or separate property, the court will consider it to be community property.
If any property is acquired partly with one spouse's separate property and partly with community property, it will be classified according to the nature of the more valuable contribution.
WHAT HAPPENS IF THE COUPLE DOES NOT CHOOSE A PROPERTY REGIME?
According to the Civil Code provisions, if the couple does not specify the property regime they wish to apply to their marriage, the default regime of community of acquisitions applies. Therefore, if no prenuptial agreement is made or if it does not include provisions regarding property, the regime of community of acquisitions will automatically apply.
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