Spousal consent (outorga conjugal) when buying in Brazil

What the Civil Code says

Art. 1.647, in the text read on the Câmara dos Deputados consolidation: “Ressalvado o disposto no art. 1.648, nenhum dos cônjuges pode, sem autorização do outro, exceto no regime da separação absoluta:” and then four cases, in plain terms:

1. to sell or encumber real estate (alienar ou gravar de ônus real os bens imóveis);
2. to sue or defend a suit about those properties or rights;
3. to give a surety or guarantee (fiança or aval);
4. to make a gift, other than a remunerative one, of common property or of property that may become part of a future half share.

The first item is the one that matters here. Note that the text speaks of alienar, selling or otherwise disposing, and of gravar, encumbering. A mortgage or another real security is therefore covered as well as a sale.

The wording of the first item speaks of “os bens imóveis” without limiting itself to property held in joint names. Which properties it reaches in practice depends on the couple’s regime. Payotte read the text of the article and its neighbours and did not read the Code’s provisions on each matrimonial regime; they are not summarised here. Ask the notary which regime applies to your seller and whether the consent is required.

When the spouse refuses or cannot consent

Art. 1.648: “Cabe ao juiz, nos casos do artigo antecedente, suprir a outorga, quando um dos cônjuges a denegue sem motivo justo, ou lhe seja impossível concedê-la.” The judge may supply the consent when a spouse refuses it without a good reason or when it is impossible to give. That is a court case, not something a notary or the other party can do.

What happens without it

Art. 1.649 says the lack of authorisation, “não suprida pelo juiz, quando necessária”, makes the act anulável (voidable), and the other spouse may ask for its annulment “até dois anos depois de terminada a sociedade conjugal” (until two years after the marital partnership ends). The sole paragraph adds that approval validates the act if it is given “por instrumento público, ou particular, autenticado” (by a public instrument or an authenticated private one). Art. 1.650 says only the spouse who should have consented, or that spouse’s heirs, can ask the court to declare the act invalid.

Three consequences for a buyer:

• The risk is a long-tail one. The two-year clock runs from the end of the marital partnership, so a defect can surface many years after the sale.
• The defect can be cured. If the spouse later approves in writing in the form required, the act becomes valid.
• The buyer’s protection is to have the spouse appear in the deed and sign, or to have a document in the form required, before paying.

What a buyer should do

1. Ask for the seller’s marital status and regime in writing at the first offer, and compare it with the matrícula: the registry law makes the owner’s marital status part of the record (Lei 6.015, art. 176, § 1, II, 4). See the matrícula.
2. Have the spouse sign the deed or provide the authorisation in a document accepted by the notary. If the spouse lives abroad, the authorisation can be given through an attorney: see power of attorney from abroad.
3. Write it into the preliminary contract: the seller declares marital status and the spouse signs or the contract states that the spouse will appear at the deed; see purchase agreement and deposit.
4. Check changes of status. A seller who says he is single but was married and divorced, or who is separated but not divorced, is a case for a lawyer to read.

Texts read for this guide say nothing about people living in a stable union without marriage; whether the same consent rule applies to them was not examined. Ask the notary and a lawyer.

If you are the buyer and married

Art. 1.647 as read concerns a spouse who disposes of or encumbers property; it does not say that your spouse must consent to a purchase. How a purchase is recorded depends on your marital regime and is stated in the deed and on the matrícula. If you borrow, the lender’s lien is an encumbrance of real estate; ask the lender whether your spouse must sign. For couples with a foreign spouse see buying with a foreign spouse.

A related rule for leases

Lei 8.245/1991, art. 3: “O contrato de locação pode ser ajustado por qualquer prazo, dependendo de vênia conjugal, se igual ou superior a dez anos.” A lease for ten years or more depends on the spouse’s consent (vênia conjugal); without it the spouse is not bound to respect the period beyond ten years (sole paragraph). This matters if you buy a property that is already rented; see renting a home in Brazil as a foreigner.

Which professional to consult

The notary asks about marital status and records it. A lawyer registered with the OAB advises when the status is unclear or when the spouse is abroad or refuses; see the property-lawyer page.