In today’s context, where marriages frequently occur at older ages, it is common for one spouse to already own real estate prior to marriage. In such cases, the couple may choose to enter into a prenuptial agreement, opting for a universal community property regime (Comunhão Geral de Bens), in which case the property would become part of the marital estate. In the absence of any agreement, the default regime of acquired property applies, under which pre-existing assets remain the exclusive property of the original owner, while only assets acquired during the marriage are considered joint property.
When the couple is governed by the regime of acquired property, several practical and legal issues arise, especially when both bear financial burdens, such as loans or mortgages, or when the non-owner spouse makes significant investments in the property. These circumstances create challenges regarding the recognition of individual contributions and protection of each spouse’s patrimony.
In this context, preserving patrimonial balance is particularly relevant, not only during marriage but also in the eventual dissolution of the marital property regime, i.e., in the case of divorce. Ensuring that each spouse’s contributions are clearly and legally recognized becomes a central concern, directly affecting economic stability and preventing future disputes.
Although there are various legal instruments to safeguard compensation or reimbursement for the non-owner spouse who assumes expenses or debts of exclusive responsibility of the other spouse, this article focuses exclusively on the mechanism of dation in fulfillment.
- Concept and Nature of Dation in payment
Dation in payment consists of delivering a property in place of fulfilling an obligation. Within the marital context, this mechanism can serve as a patrimonial adjustment tool, allowing one spouse to satisfy, wholly or partially, obligations assumed by the other, whether for the benefit of the family or exclusively for the other spouse, without causing patrimonial imbalance or injustice.
- Applicability in the Regime of Acquired Property (Comunhão de Adquiridos)
Under the regime of acquired property, the marital estate includes all assets acquired for consideration during the marriage, excluding each spouse’s pre-existing property. Using dation in payment between spouses allows:
- Formal recognition of each spouse’s contribution to acquiring or maintaining the property owned by one spouse;
- Equitable sharing of property appreciation, ensuring that increases in value benefit both spouses;
- Prevention of patrimonial imbalances in case of dissolution of the marital property regime, transparently reflecting each party’s contributions;
- Regularization of property registration, ensuring that future transfers or divisions of assets do not generate disputes.
- Advantages and Precautions
Advantages:
- Enables formalization of unequal financial contributions, granting them legal recognition;
- Reduces the risk of future disputes over property ownership or division.
Precautions:
- The dation must be formalized by public deed for effectiveness against third parties;
- It is advisable to accompany it with asset valuation and legal advice to prevent unjust enrichment of one spouse;
- It must respect the principles of the acquired property regime, ensuring common assets are not improperly affected;
- If a mortgage loan exists on the property subject to dation, prior consent from the lender must be obtained. This is necessary because the property transfer may affect the lender’s secured interest, and without consent, the bank may invoke contractual clauses allowing it to modify the original loan terms, such as requiring early repayment, changing interest rates, or imposing new conditions.
- Conclusion
Using dation in payment between spouses under the regime of acquired property (comunhão de adquiridos) proves to be an effective tool for preserving patrimonial balance. By formalizing financial contributions related to individual properties, this mechanism promotes transparency and legal security, prevents future conflicts, and ensures both spouses’ interests are respected during marriage and in the event of property regime dissolution.
Given the complexity and potential legal implications, it is essential to seek the guidance of professionals experienced in Family Law, such as Belzuz Abogados S.L.P. – Branch in Portugal.