A sub-rogação real dos bens particulares e a preservação da sua qualidade do regime de comunhão parcial

Abstract

This work seeks to analyze the real subrogation in the regime of partial community of property, from the Civil Code, more specifically articles 1.658 and 1659, which provides for the communication of the property acquired during the marriage, and the assets excluded from the community. There are some situations in which an asset has the appearance of a common asset of the couple, but it is, in reality, a private asset, this is the case in which there is the phenomenon of subrogation, and so that this asset does not become the target of legal dispute, in an eventual marital dissolution, some measures can be taken. In view of this problem, the question that arises for this study is to know which are the normative instruments that enable the preservation of the quality of the asset that is part of the private assets of the alienating or exchanging spouse, during marital cohabitation, and which are the appropriate hypotheses for the application of each of them. The general objective of this research is to analyze real subrogation and its ability to preserve patrimonial relations prior to the constitution of the family. The specific objectives involve understanding the particularities of the partial community of property regime, identifying the assets subject to subrogation and their species, making a comparison with the previous code and with Portuguese law, and analyzing the practical aspects of the materialization of real subrogation.The relevance of this study is due to the fact that the partial community of property regime is the regime that most Brazilians adopt, and the one that divorces the most, and the result may contribute to a reduction in litigation in this matter. It was elaborated from a bibliographic and jurisprudential study, in order to understand the position of the most part of law teachers and Courts of Justice on this subject. The work concludes that the quality of private property can be proven by the subrogation clause, stating the origin of the money used in the acquisition of the property, together with the signature of the other spouse on the acquisition deed of the property, and in the absence of this more appropriate means, it is still possible to prove by the financial path of the acquisition of the property.