Divorce and property: who keeps the house built on one spouse’s land?

It was published in the Diário da República the Uniform Case Law Ruling No. 9/2025 of 10 September, which decided how to resolve cases where the marriage is dissolved by divorce but a family home had been built by both spouses during the marriage, married under the community of property regime, with common money or assets and on land belonging exclusively to one of them.

Until then, this issue generated jurisprudential and doctrinal divergences.

Part of the doctrine and some courts adopted the position according to which the construction of the house would fall under Article 1724 of the Civil Code, with Article 1726(1) of the same Code also being applicable. From this interpretation, the house would be considered either common property or the separate property of the spouse owning the land, depending on which contribution was more valuable, with the possibility of compensation under Article 1726(2).

In contrast, another view qualified the construction as a useful improvement (benfeitoria útil). Consequently, the construction would be deemed to belong to the separate estate of the landowner spouse, while the couple’s common estate would hold a credit against that spouse’s separate estate.

The uniform ruling rejected the first interpretation, reasoning that the ratio of Article 1726 concerns the acquisition of assets from third parties, which was not the case here. Furthermore, applying this article could alter the nature of the land into common property, colliding with the principle of immutability set forth in Article 1714. As stated in the ruling, this would amount to a “disguised accession by incorporation” (acessão industrial encapotada).

It also rejected the view that the case involved merely a useful improvement, since it was not simply the improvement of an existing thing but rather the creation of a new one.

Although there was a dissenting opinion and minority votes, the Court concluded and unified case law, determining that where a family home is built during the marriage by both spouses, married under the community of property regime, using common money or assets, on land owned exclusively by one spouse, such construction constitutes a new asset belonging to the spouse who owns the land.

Consequently, the other spouse is entitled to a compensatory credit from the common estate against the estate of the owner of the new asset, thereby restoring patrimonial balance.

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