A stable union and the birth of a child occurring after the constitution of a mortgage may ensure the recognition of a property’s exemption from seizure, provided it is proven that the asset is used as the family residence. This understanding was unanimously established by the 3rd Panel of the Superior Court of Justice (STJ).
The controversy arose from a third-party objection filed by the partner and child of a São Paulo businessman who had pledged a property as collateral for bank credit operations contracted by a company in which he was a partner and guarantor, at a time when he was still single and childless. Later, the property was seized in enforcement proceedings brought by the financial institution, prompting the businessman’s family members to argue that the asset was a family home and therefore protected under Law 8.009/1990.
In the first instance, the objection was dismissed. The court ruled that family home protection did not apply because the mortgage was established before the stable union and the birth of the child, when the guarantor was still single. The São Paulo Court of Justice upheld the decision, emphasizing that the creditor could not be harmed by a family situation unknown and subsequent to the creation of the guarantee.
That interpretation, however, was overturned by the STJ. The case’s rapporteur, Justice Ricardo Villas Bôas Cueva, emphasized that Law 8.009/1990 provides protection to the family home based on “a fundamental right of the human person: the right to housing.” According to the justice, the purpose of the exemption is not to shield the debtor from obligations, but to preserve the residence of the family unit—broadly defined—regardless of how it was formed.
The rapporteur pointed out that STJ jurisprudence accepts that family home protection may extend to situations arising after the mortgage was constituted or even after the property was seized. The panel concluded that, since it was proven that the seized property served as the family’s home, the partner and child should not bear the financial consequences of a transaction made before the family was formed. In fact, the São Paulo court had itself acknowledged that the property was being used as a residence by the debtor, his partner, and their child.
However, while recognizing the property as a family home, the rapporteur noted that one issue had not been fully analyzed by the lower courts: whether the loan was used to benefit the family unit—a situation that could, in theory, justify the seizure. Since this requires evidence analysis, the STJ cannot address it directly without bypassing lower court procedures.
Although the panel reversed the São Paulo court’s stance regarding the formation of the union and birth of the child after the mortgage, it ordered the case to be sent back to the state court to resume the appeal proceedings, specifically examining whether the loan provided a benefit to the family.