THE DIVISION OF FGTS (BRAZILIAN EMPLOYEE SEVERANCE FUND) UNDER DIFFERENT MARITAL PROPERTY REGIMES

UNIVERSAL COMMUNITY PROPERTY, PARTIAL COMMUNITY PROPERTY, AND TOTAL SEPARATION OF PROPERTY

Abstract

ABSTRACT: This work aims to analyze how the division of FGTS (Brazilian Severance Indemnity Fund) upon the dissolution of marriage can be carried out in a balanced and fair manner, according to each property regime. It is observed that, although the FGTS is understood as a labor benefit intended to protect the worker, in the context of Civil Law it has great patrimonial relevance, as it forms part of the couple's common assets when acquired during the marriage. It is also analyzed that the Civil Code and the Supreme Federal Court are discussing this topic, mainly in the regimes of partial community of property and universal community of property, where the period in which the asset was acquired is important to the matter. It is noted that, although some courts and authors recognize this division, there are doubts about how to guarantee this division, which, after withdrawal, as established by law, requires notification to Caixa Econômica Federal (Brazilian Federal Savings Bank) to preserve the values ​​for the division. Furthermore, it is identified that in the regime of total separation of property, this communication of the FGTS is not possible, since in this regime there are no common assets. Therefore, it is important to understand the distribution of the Severance Indemnity Fund (FGTS), as it is a relevant topic that can ensure patrimonial justice, preventing unjust enrichment, respecting the chosen property regime, and the joint effort of the couple.

Keywords: Property regime; FGTS (Brazilian employee severance fund); division of assets; joint ownership; marriage.