The Superior Court of Justice (STJ), in its judgment of Special Appeal No. 2,195,589, established a precedent with significant legal impact: it now allows the inclusion of a debtor’s spouse as a defendant in enforcement actions, even without their signature on the contract or instrument that originated the debt, as long as the obligation was incurred during the marriage and for the benefit of the family unit.
In practice, this means that the assets of a spouse who was not directly involved in the legal transaction may be subject to judicial seizure. Affected assets may include funds in bank accounts, real estate, vehicles, and other seizable property linked to the family entity.
According to Justice Nancy Andrighi’s opinion, under the partial community property regime, there is an absolute presumption of joint effort between spouses, even if the asset is registered in the name of only one of them. Along the same lines, she emphasized that mutual consent is also presumed for acts essential to the family’s economic maintenance.
Thus, the possibility of including the spouse in enforcement depends on the matrimonial property regime adopted. The decision primarily affects couples under the partial and universal community property regimes, as provided in Articles 1,658 to 1,671 of the Civil Code. The core objective of the measure is to facilitate debt recovery by allowing the seizure of assets registered in the spouse’s name, provided they serve the family unit, until the debt is paid off.
Risk of Violating the Code of Civil Procedure (CPC)
The STJ’s position is based on Articles 1,643 and 1,644 of the Civil Code, which establish the joint liability of spouses for debts incurred for the benefit of the family. However, the ruling also raises concerns. By creating a presumption of liability, it shifts the burden of proof onto the spouse, who must demonstrate that the debt provided no benefit to the couple or that the seized assets are not part of the shared estate—i.e., not intended for the family group.
Although the measure seeks to protect creditors’ rights and enhance the effectiveness of enforcement proceedings, it may open the door to violations of property rights and due process—both of which are safeguarded by the Code of Civil Procedure. The CPC stipulates that only those who signed the enforceable instrument (as debtor, guarantor, or co-signer) can be sued, except in specific legal circumstances.
It’s important to highlight that if the spouse can prove they did not consent to the debt and that the funds did not benefit the family, they may be released from liability.
While the decision represents progress in ensuring effective debt collection, it must not be used as a tool for automatically penalizing the debtor’s spouse. Their inclusion in the proceeding must be supported by concrete evidence that the debt was contracted for the benefit of the family unit.
Therefore, although this legal development aims to facilitate credit recovery, it also poses risks to the family’s asset protection. It demands caution, balance, and vigilance from both legal professionals and the judiciary to prevent abuse and ensure fairness in enforcement proceedings.