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Family Law

The family heritage

by Danilo Santana - Brazilian Writer

This article was translated by an automatic translation system, and was therefore not reviewed by people.


Brazilian law coexist in two distinct ways of "and the family", in an unintended way, also called the law, which applies to all families, without distinction, and another in a voluntary, which depends on expression of will and specific legal provisions .


The "good of the family" is a legal institution that submits a residential property to a special system of unseizability and inalienability on, aiming to protect and safeguard the maintenance of a home to the family, highlighting it and freeing it from risks of an execution for debt, with some exceptions.


This means that the residential property that is voluntarily recorded as "good of family," or that constitute the sole or less valuable property of the family can not be seized and taken to auction for debts. Except those cases where the law explicitly states.


The "good of the family" as involuntary, pursuant to Law No 8009/90 establishing the unseizability of residential property because of debts, except the exceptions that explicitly, but makes clear that, if the debtor has more of a residential property , should be considered only as the lesser-value.


Law No. 8009/90

Article 1 The residential property of the couple, family or entity, impenhorável and is not responsible for any civil debt, trade, fiscal, welfare or otherwise, acquired by the spouses or the parents or children who are the owners and residing therein, except in cases provided for in this Law

Sole Paragraph. The unseizability includes the property on which to build the building, the plantations, the improvements of any nature and all equipment, including the use of professional, that trim or mobile home, where even.

Article 2 excludes from the unseizability the transport vehicles, works of art and sumptuous decorations.

Sole Paragraph. In the case of leased property, the unseizability applies to goods that quitos trim the residence and are the property of the lessee, subject to the provisions of this article.

Article 3 The unseizability is enforceable in any process of civil enforcement, tax, welfare, labor or otherwise, unless moved:

205 * See Summary of the STJ.

I - because of claims of employees of the residence and their contributions;

II - the holder of the credit arising from the funding for the construction and acquisition of property within the limits of the claims and additions made on their contract;

III - by the creditor of child support;

IV - for collection of taxes, or land area, fees and contributions payable in relation to the family property;

V - to implement the mortgage on the property offered as collateral by the couple or by the family;

VI - to have been purchased with proceeds of crime or enforcement of sentence to sentence the criminal compensation, reparation or perdimento goods.

* VII - the obligation of bail granted in the lease.

* Item VII added by Law No. 8245 of 18 October 1991.

Article 4 is not benefit from the provisions of this Act who, knowing it is insolvent, in bad faith acquires property more valuable to transfer the family home, or do not discard the old house.

§ 1 In this case the judge may, in its action by the creditor, the transfer unseizability for family housing before, or you cancel the sale, freeing the most valuable for performance or competition, as the hypothesis.

§ 2 When the family residence is set in rural property, the unseizability limited to, the seat of residence, with their movable and, in cases of art. 5, section XXVI of the Constitution, the limited area as a small rural property.


* See Art. 5, XXVI, of the Constitution of 1988.


* See Art. 1712 of the Civil Code.


Article 5 For the purposes of unseizability, which treats this Act, be deemed to reside at a single building used by the couple or family for permanent housing.

Sole Paragraph. If the couple, family or organization, be owner of several buildings used as residence to unseizability fall on the lesser-value, unless another has been registered for that purpose, the Register of Buildings and in the form of art. 70 of the Civil Code.

* See arts. 1711, caput, 1715, caput, and 1716 of the Civil Code


Thus, theoretically, independent of any manifestation of will or special legal provisions, the family residence be protected against attachment of execution for debts.


However, some cases such as a family that owns several buildings, the least valuable of them could not effectively protect the family social interest. Thus, the civil rule, from the Civil Code of 1916 until the present, 2002, retains the possibility to establish as "the family and" another property that can truly protect the dignity and social value of family. However, in this case, the "good of the family" should set up a formal and voluntary act, subject to conditions and with limited reflexes.


Civil Code of 2002, Subtitle IV - The Well's Family

Article 1711. Can spouses, family or entity, by deed or will, devote part of their heritage and to establish a family, provided that not more than one third of equity existing at the time of the institution, kept the rules on unseizability of residential property established by special law.

Sole Paragraph. The third well may also establish a family or a donation will, depending on the effectiveness of the act's explicit acceptance of both spouses benefit or family benefit of the entity.

Article 1712. The property consists of family residential building in urban or rural, with their affiliations and accessories, of which in both cases the family home, and may include securities whose income is applied in the conservation of the property and the livelihood of the family.

Article 1713. The securities, for purposes specified in Article history, may not exceed the value of the building up in the family well at the time of their institution.

§ 1st to securities should be properly identified in the instrument of the institution and the family.

§ 2nd If the securities named, the institution of family as they should appear in their books of record.

§ 3 The settlor may provide that the administration of the securities is in the financial institution and the disciplinary form of payment of their income to the beneficiaries, in which case the liability of directors will follow the rules of the deposit.

Article 1714. The welfare of the family, whether established by spouses or a third party, is the registration of its title in the Registry of Property.

Article 1715. The welfare of the family is exempt from execution for debts after its institution, except those which come from taxes on the building, or the costs of condominium.

Sole Paragraph. In the case of execution for the debts mentioned in this article, the existing balance will be applied in another building, as the family or in public securities, to support family, unless advise other relevant reasons solution, at the discretion of the judge.

Article 1716. The relief that comes the last preceding article as a living spouse or, failing that, until the children complete the majority.

Article 1717. The building and securities, consisting of the family as well, can not have destination other than provided for in art. 1712 or be alienated without the consent of the parties and their legal representatives, heard the prosecutor.

Article 1718. Any form of settlement of administrative entity, referred to in Paragraph 3 of art. 1713, will not reach the values assigned to it, ordering the judge to his transfer to another similar institution, according to a case of bankruptcy, the provisions on application for refund.

Article 1719. Demonstrated the impossibility of maintaining the family and the conditions in which it was established, the judge may, at the request of stakeholders, abolish it or allow the subrogation of the goods that are in the other, after the settlor and the prosecutor.

Article 1720. Unless otherwise specified in the act of institution, the administration of the family is well to both spouses, addressing the judge in case of disagreement.

Sole Paragraph. With the death of both spouses, the administration will enter the eldest son, if greater, and, otherwise, your tutor.

Article 1721. The dissolution of the conjugal society does not extinguish the right of the family.

Sole Paragraph. The company dissolved by the death of a married spouse, the survivor may request the termination of the family well, if only the good of the couple.

Article 1722. Ceases to exist, also, the good of the family with the death of both spouses and the majority of children, provided that non-curatela.


The deed, the will or the donation, are legal ways to establish the "good of family," however, it should be noted that the property may not exceed the amount corresponding to one third the net worth of the settlor at the time of the institution and that its benefits prevail only for debts incurred after its establishment, or rather after the registration of the act that established the office in their building.


It is important to register for appropriate, that each family can only assert a "good of the family." If the husband up as well as a family, regardless of being married under the regime of separation of property, his wife can not create another, even under the pretext of protecting the interests of children. Doing so is considered ineffective.


Considering the constitutional recognition of the stable family as an entity the "good of the family" can be established not only by the spouses, for any of the parents and their offspring, or by others as a gift with specific clause, but also for others who fit the legal definition of family.


The "good of the family" can also be a rural property, however, in this case, only enjoy the benefits of the law, the building used for housing, the rest of the rural area, in any form, will be discovered and will always be subject to judicial enforcement.


Therefore, it remains perfectly clear that does not lend itself as "the family and" the productive property, the rent of the land and even the bare earth. Since the law is explicit in referring to the residence of the family.


The law extends the privileges of "the family and" also for affiliations and accessories residential building, urban or rural, including the securities tied him, they however, can only be applied in the conservation of the property and the livelihood of the family. As an accessory and affiliations should understand everything that exists and composed according to the main building, the movable that trimmed; the objects and facilities which are conducive to residential use of the family.


A third may also donate any and establish as well for another family that owns a property if it is residential, however, to establish the institution and the donation, the donee should formally express their consent because, in any event, despite the donation, and focus on the restrictions of their own "property of the family."


With the eventual death of both spouses or partners, if stable, the administration of the family and shall be entrusted to eldest son, if greater, or their guardian if minor.


Furthermore, it is impossible to maintain the good of families, lack of sufficient resources for its maintenance, or deterioration to prevent its operation as a residence, they may ask the judge and the dissolution of the family, or even as appropriate, request that peeve is transferred to another property, existing or to be acquired with the resources that, if it is demonstrably more appropriate or less costly to be maintained.


The law also provides for the extinction of the family and, since that is the only right of the couple and does not harm interests of minors in the case of dissolution of the conjugal society for the death of either spouse.


The law provides, finally, that the "good of the family" extinguished with the death of spouses, and the majority of children. But, anyway, so nothing is automatic, will always require the applicant, the assessment of the judge who will examine the case in all angles and decide only after hearing the prosecutor. 


Comments and Opinions

1) Fcasagra (17/7/2008 at 19:51:28)
Excellent article, makes clear many doubts regarding the classification of the family and
2) Pereira (18/7/2008 at 20:32:48)
Great article. I will use that lo.Esclarece many important points.
3) Adailson Alves (10/9/2008 at 11:46:26)
Legal Article "Right of Family" is a legally recognized right among the most diverse forms of Brazilian law provided for in our Magna Carta and the law of the Brazilian Civil Code etc.. In the comment is welcome and essential to emphasize the placement of such high levels which we knew (a) legislator (a) does with its bright esplanação, it is undeniable that the subject as broad and as descutido, deicha clear evidence comprometedras and rights adqueridos from the well of family.
4) Daniel Godoy (24/11/2008 at 17:18:31)
Excellent quality
5) New Donizeti Pio (24/2/2009 at 19:07:25)
Excellent article, explaining key points about the good of families, due to the complex will generate endless questions ...
6) Aaron (1/3/2009 at 11:44:00)
good Article
7) Elisha Vincent (rj) (6/3/2009 at 01:14:46)
Very enlightening article. Congratulations to the author.
8) Oliveira C Solomon (23/3/2009 at 20:16:09)
It is a very good article, much information the author was very happy in his presentation. Congratulations.
9) Benedita Ilene (Cuiaba) (25/3/2009 to 17:29:41)
Excellent article! I recently formed and for me, served to exclarecer doubts. Congratulations.
10) Aldo Matos (12/6/2009 at 00:33:09)
This article has added a range of knowledge about the family and that even those who are operators of the law, ignorant, very good.
11) Taniery (4/7/2009 at 19:05:02)
excellent article, served to exclarecer many points that still had doubts.

This article was translated by an automatic translation system, and was therefore not reviewed by people.

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