One of the main consequences of divorce - apart from the children - is the division of marital assets.
The content of the marital assets will differ according to the marriage regime and the behavior adopted during the marriage.
For further information, see the published texts available at the following links
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In this context, it is essential to determine the specific date from which the divorce takes effect.
This is because, not infrequently, there is “preparation” on the part of one of the spouses, which also involves dissipating the assets in such a way that they are no longer part of the marital property.
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This is relevant to the property effects between the spouses,
Article 1789(1) of the Civil Code stipulates that “The effects of divorce shall take effect from the date on which the judgment becomes final, but shall be retroactive to the date on which the action was brought as regards the property relations between the spouses”.
Thus, for the purposes of division, the date on which the divorce action was filed is generally (and alternatively) relevant.
However, Article 1789(2) of the Civil Code states that “If the de facto separation between the spouses is proven in the proceedings, either of them may request that the effects of the divorce be retroactive to the date, which the judgment shall determine, on which the separation began”.
Therefore, in order to ensure that the effects on property are retroactive to a certain date, this must be requested within the scope of the divorce proceedings and proven within the scope of the respective proceedings, which will take place at the trial hearing.
For this reason, the divorce by mutual consent cannot be converted into divorce during the conciliation attempt referred to in Article 1779 of the Civil Code and Article 931 of the Civil Procedure Code.
Even so, it is true that more recently decisions have been handed down to grant a divorce in the context of the conciliation attempt, namely because it only affects the relationship between the spouses and, if there is an agreement, it becomes “unnecessary” to continue with the process just to prove the date of separation accepted by both.
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In turn,
With regard to the administration of the couple's assets, Article 1678(2) of the Civil Code briefly states that
“Each spouse shall also have the administration of:
a) The income he/she receives from his/her work;
b) His or her copyright;
c) Common property brought into the marriage or acquired free of charge after the marriage, as well as property subrogated to it;
d) Assets that have been donated or left to both spouses to the exclusion of the administration of the other spouse, except in the case of assets donated or left on behalf of the other spouse's estate;
e) Movable property, whether owned by the other spouse or jointly owned, which he/she uses exclusively as a working tool;
f) The other spouse's own property, if he or she is unable to exercise administration because he or she is in a remote or unknown place or for any other reason, and provided that a sufficient power of attorney has not been granted for the administration of such property.”
In turn, Article 1681(1) of the Civil Code states that
“A spouse who administers common property or property belonging to the other spouse under the provisions of Article 1678(2)(a) to (f) shall not be obliged to render accounts of his or her administration”
Consequently, if there is no request to set a de facto separation date prior to the filing of the divorce action, the (action for) rendering of accounts relating to the administration of the marital property that is requested by the spouse who does not administer the respective assets should only cover the period following the filing of the divorce action.
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