A (in)comunicabilidade de Indenizações Extrapatrimoniais no Regime da Comunhão Parcial de Bens: Uma Lacuna Legislativa

Abstract

It is currently understood that, under the regime of partial community of property, assets acquired during the marriage are equally divided between the parties in the event of divorce. This concept is known as "meação." Article 1,659 of the Civil Code explicitly lists the assets excluded from the community; however, it does not exclude assets of an extrapatrimonial compensatory nature. Furthermore, the provisions dealing with indemnity payments do not clarify how these assets should be divided under the partial community property regime (or any other regime), creating legal uncertainty due to the lack of rules addressing concrete cases on the matter. In light of this gap, this study seeks to answer the following question: in the absence of legislation on the communicability of compensations for non-patrimonial damages resulting from civil liability under the partial community property regime, how should these assets be divided? To address this question, the study employs the hypothetical-deductive method, using hypothesis falsification to confirm the non-communicability of such assets. Additionally, it conducts a state-of-the-art review by analyzing court rulings on the subject, as well as consulting legal doctrine and databases such as Capes journals, Google Scholar, and SciELO, using descriptors like "immaterial damages," "nonpatrimonial damages," "moral damages," and "property regime." The general objective is to understand how the communicability of assets operates under the partial community property regime when resulting from compensations due to civil liability for immaterial damages. The study also aims to achieve specific objectives, such as understanding the significance of this legislative gap in the legal system, the use of hermeneutic interpretation methods to address its shortcomings, exploring new paradigms in civil liability, particularly the concept of "damage" and its legal nature, and investigating the applicability of non-patrimonial damages by ricochet. The research concluded that, due to the personal nature of compensation resulting from civil liability, these assets are not subject to division. However, it was also noted that, in specific cases, there are nuances that may mitigate this non-communicability.