Imagine a case in which two former spouses, while still married under the community of acquests regime, built a property—the family home during the marriage—using joint assets (money belonging to both) on land separately owned by one of the spouses.
After the divorce, situations like this can give rise to significant disagreements in the division of assets: is the property, built with joint assets on land that is itself a separate asset, considered a joint asset or a separate asset in the division that follows the divorce?
Judgment No. 9/2025 of the Portuguese Supreme Court of Justice, dated 10 September, answered this question and established a standard for similar cases. Let us explain.
It is important to understand that joint assets were used to build a new asset based on a separate asset belonging to one of the spouses. Under the community of acquests regime, separate assets are, essentially, those that the spouses already owned at the date of marriage, or those acquired by gift, inheritance, or a prior individual right. All other assets acquired during the marriage are joint assets. Therefore, at first glance, it may seem that the house should be considered a joint asset, since it was built with both spouses’ money during the marriage.
However, the Supreme Court of Justice reached a different conclusion: in these cases, the house becomes a separate asset of the spouse who owned the land, and the other spouse is entitled to a compensation credit for the money invested, so that the balance between the estates is preserved.
If this were not the case, it would imply changing the nature of the assets or even altering the matrimonial property regime, which under Portuguese law is immutable during the marriage—the principle of immutability of the matrimonial property regime and the logic that acquisitive prescription/accession does not operate between spouses. Accession consists of the incorporation of one asset into another, as happens when a house is built on a plot of land, with the owner of the land also becoming the owner of the building, unless otherwise agreed. Acquisitive prescription, in turn, refers to the acquisition of ownership through prolonged and peaceful possession, but under Portuguese law neither of these mechanisms operates between spouses, precisely in order to preserve the immutability of the matrimonial property regime and prevent one spouse from acquiring rights over the other spouse’s separate estate merely through marital cohabitation.
This is because, if the property were considered a joint asset, the land on which it stands would see its nature change from rural to urban, and the asset (the land) would change from separate to joint, effectively altering the regime into one of general community of property. Under that regime, spouses acquire each other’s assets regardless of when and how they were acquired—essentially speaking.
In other words, the house itself is not divided as a joint asset; rather, there is a tendency to recognize a compensation credit in favour of the estate that financed it (the joint estate) against the estate that retains the “new thing” (that of the landowner). It is therefore impossible to separate the house from the land, even if one arose under different conditions from the other.
In summary, the division of assets after divorce, where the construction of a property on land separately owned by one of the spouses is at issue, involves significant legal complexity. Current case law, by prioritising ownership of the land and recognising a compensation credit in favour of the joint estate, seeks to protect patrimonial balance without undermining the matrimonial property regime chosen by the couple.
Accordingly, anyone in this situation should carefully consider their rights and expectations, seeking qualified legal advice to safeguard their interests and ensure a fair solution, while respecting the current legal framework and the specific reality of the assets involved. This approach minimises surprises and supports an equitable resolution of an already delicate situation.
At Belzuz Advogados, S.L.P. – Branch in Portugal, our Family and Succession Law team can help resolve this type of dispute.