Divórcio litigioso: eficácia do regime jurídico de comunhão geral de bens na partilha de bens adquiridos durante a separação de facto

Abstract

The marital separation has been shown to be an essential phenomenon in the dissolution of marriage, so in this thesis we address the effectiveness of the legal framework for general community of estate, in the sharing of assets acquired during the marital separation. The basic question is whether or not the assets acquired during the marital separation are the common property of the ex-couple. In other words, whether or not assets acquired during de marital separation are called into division of assets after the dissolution of the marriage. In the course of our studies, we realized that the prerequisites for maintaining a marriage are based on respect, trust, solidarity, assistance, cohabitation and fidelity. The marital separation implies the cessation of these assumptions, which means that the couple is released from the duty of fidelity and ceases to cohabit, with no intention of re-establishing the marriage. In Mozambique, the extinction or dissolution of the marriage is preceded, in many cases, by the marital separation. During the marital separation, many legal transactions take place that culminate in the acquisition of property by both parties, and the initial petition for litigious divorce, which could serve as proof that marks the beginning of the marital separation, in many cases only takes place years after the marital separation has already taken place. The Mozambican legislator has enshrined in Article 199 (2) of Law 22/2019 of 11 December, the Family Law, that ‘If the divorce is preceded by the marital separation, its effects are produced from the moment of separation.’ This means that in the case of the division of assets preceded by the marital separation, the division of assets after the dissolution of the marriage is only legally effective in relation to assets acquired during the marriage, thus excluding assets acquired during the marital separation. Given that the legislator has not clearly established the marital separation regulation in terms of the mechanisms for registering the separation, this makes it difficult to prove the actual moment of marital separation in cases where it takes place while the ex-spouses continue to live in the same house, but without communion. The marital separation automatically terminates the communion of life and, consequently, also terminates the property regime, as well as the communicability between assets, so the assets acquired during the marital separation fall into the category of private assets of each ex-spouse. In this sense, once the divorce decree has been passed, the process of sharing assets follows, and the assets that will be called for sharing are the common assets of the ex-couple. For the purposesof this thesis, the sharing will only be effective for the assets that entered the marriage through the legal framework for general community of estate and in the assets acquired during the marriage, thus excluding the assets acquired during the marital separation.