During a marriage - particularly one entered into under the supplementary regime of communion of acquisitions [1] - there will, as a rule, be fluctuations between each spouse's own assets and the common assets.
These fluctuations - or asset shifts - may result in the enrichment of one (or more) of the respective assets to the detriment of the other(s), i.e. with the inherent impoverishment of the other(s), and may occur directly or indirectly.
In order to correct these fluctuations in the end, after divorce and, consequently, in the context of division, the legislator has provided for various compensations, which are briefly described below:
1.
In relation to the acquisition of assets during the marriage as a result of previous rights with the couple's joint money, Article 1722(2) provides for the respective compensation.
["The following are considered, among others, to have been acquired by virtue of a prior right of their own, without prejudice to any compensation due to the joint assets:
a) Assets acquired as a result of pre-marital rights over illiquid assets shared after the marriage;
b) Assets acquired through adverse possession based on possession that began before the marriage;
c) Assets purchased before the marriage with reservation of ownership;
d) Assets acquired through the exercise of pre-emption rights based on a situation that already existed at the time of the marriage.”]
2.
In relation to the acquisition of property partly with money or proceeds from joint property and partly with money or proceeds from one's own property, Article 1726(1) and (2) of the Civil Code stipulates that the property shall be in the nature of the greater of the benefits, although the respective compensation shall be safeguarded.
3.
In relation to the acquisition of a share in undivided property by a spouse who is a co-owner outside the community, the property will be their own property and, under the terms of article 1727, the respective compensation will be due to the community property for the sums provided for the respective acquisition.
4.
With regard to new assets acquired by virtue of ownership of own assets, which cannot be considered as fruits thereof, Article 1728(1) in fine provides for the respective compensation.
["2. By virtue of the provisions of the preceding paragraph, the following are specifically considered to be own property
a) Accessions;
b) Materials resulting from the demolition or destruction of property;
c) The part of the treasure acquired by the spouse as owner;
d) Premiums for the amortization of credit securities or other securities owned by one of the spouses, as well as securities acquired by virtue of a subscription right inherent therein"].
5.
In the case of the payment of the couple's joint debts with one of the spouses' own assets, or of one of the spouses' own debts paid with the couple's joint assets, Article 1697 provides for the respective compensation.
(1) Where the property of one spouse is responsible for debts owed by both spouses, that spouse shall become a creditor of the other spouse for what he or she has paid in excess of what he or she was entitled to pay; however, this claim shall only be enforceable at the time of the division of the couple's property, unless the separation regime is in force.
2. Whenever the debts of one of the spouses alone are the responsibility of the joint property, the respective amount is credited to the joint property at the time of division"].
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It should be noted, however, that apart from the situations mentioned above, there may be other fluctuations in money that lead to the enrichment of one (or more) assets to the detriment of another.
In this context, the figure of unjust enrichment, as set out in Article 473 of the Civil Code, may still be used.
As such, the respective legal precept states that, “Anyone who, without justifiable cause, enriches himself at the expense of another shall be obliged to repay what he has unjustly enriched himself with”, and art. 474 further states that “There shall be no restitution for enrichment when the law provides the impoverished person with another means of compensation or restitution, denies the right to restitution or attributes other effects to enrichment”.
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In addition to situations relating to compensation, there may also be a compensatory claim on the part of one of the spouses, with Article 1676(2) of the Civil Code stating that “If the contribution of one of the spouses to the costs of family life is considerably higher than that provided for in the preceding paragraph, because he or she has excessively renounced the satisfaction of his or her interests in favor of life together, in particular his or her professional life, with significant patrimonial losses, that spouse has the right to demand the corresponding compensation from the other”.
This provision was introduced by Law no. º 61/2008, of 31/10 - which, moreover, made fault irrelevant in divorce for the purposes of division - without prejudice to possible compensation for breach of conjugal duties, provided that the other legal conditions are met [2] - and introduced the “structural divorce” system - and came to, furthermore, to safeguard the position of the spouse who has given up their professional life in order to cope with family life and, after the divorce, has been disadvantaged in relation to the spouse who has continued to work and is therefore in a better position to earn a higher income than the other.
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Finally, it should be noted that compensation should be demanded at the time of division (except in the case of separation of property).
[1] It should be emphasized that, in general terms, in a marriage celebrated under the general community of property regime, there will still be own property and common property - e.g. incommunicable property, as per Article 1733 of the Civil Code, and that in a marriage celebrated under the separation of property regime, there will not be common property, but property in joint ownership.
[2] The general principle laid down in Article 483(1), according to which “Whoever, with intent or mere fault, unlawfully violates the right of another or any legal provision intended to protect the interests of others shall be obliged to compensate the injured party for the damages resulting from the violation”.
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