Settlement of joint property

A couple lived together as de facto couple for many years (from 1984 to 2015) and, as is often the case, during their cohabitation they formed a common estate , in practice, as a community of property. Upon breaking the relationship , one of the parties requested judicially to extinguish that community and distribute the assets , that is, to "close" what they had in common and divide it in an orderly manner.

The court declared the community extinguished and agreed that the division should be made through a partition accountant , who prepared a partition notebook (a distribution proposal with valuations, accounts, and compensations). That notebook was challenged due to discrepancies, among other things, regarding how certain credits should be treated (for example, money contributed by one of the members and how it is returned) and whether it was appropriate “update” amounts as if it were a settlement of joint property.

The Supreme Court (TS) makes clear the underlying idea, in a de facto couple the regime of joint property does not apply (because there is no marriage), so its rules are not simply transferred, including the “value-based” way of updating credits. In this type of settlements, the general rule is the nominalist principle, that is, credits are valued at their nominal amount (the amount owed), without converting it into a “revaluation” like that of the distribution of joint property, although legal interest may apply.

However, in this case the appeal for cassation does not even get debated in depth because there is a significant procedural problem , in the execution phase, the court resolved the challenge of the notebook by means of a ruling, when the correct action was to issue an order . That “formal error” causes the TS to declare the appeal for cassation inadmissible.

In situations of couple conflicts, our professionals can advise you in defending your rights