In a landmark ruling, Portugal’s Supreme Court of Justice (STJ) has clarified what happens when a couple builds a family home on land that belongs exclusively to one spouse, using common funds. This question, often arising in divorce and property division cases, has long generated conflicting rulings and legal uncertainty.
The new decision provides clear guidance: construction on a spouse’s land results in a separate property asset for the landowner spouse, but the common estate gains a right to compensation.
The Case Before the Supreme Court
The dispute concerned a house built during marriage under the community of acquests regime. The land had been donated to the wife by her parents (her separate property), but the construction was financed with common funds.
The central issue: should the house be treated as an improvement (benfeitoria), a common asset, or a new property created under the rules of real estate accession?
The Competing Theories
1. Improvements Regime
Some courts and legal scholars held that the house was a valuable improvement to the spouse’s separate property. In this view, the landowner keeps ownership, but the couple’s common estate is entitled to a credit claim for the value of the works — avoiding unjust enrichment.
2. Real Estate Accession (Article 1340 Civil Code)
Another approach suggested applying the rules of accession, where buildings become part of the land. But the STJ rejected this: spouses are not “strangers” to each other, and both know the land’s ownership.
3. Matrimonial Property Rule (Article 1726 Civil Code)
A third theory proposed that when separate and common funds are used, the property should take the nature of the more valuable contribution. In some cases, this could transform the house into a common property asset.
The Supreme Court’s Decision
After weighing the theories, the STJ issued a uniform ruling:
“A house built by spouses married under the community of acquests regime, on land owned by one spouse, using common funds, is the separate property of the landowner. However, the common estate acquires a compensation credit against the landowner’s separate estate.”
Practical Implications
Divorce and Property Division
In future divorce proceedings, if a house is built on one spouse’s land, it will be classified as that spouse’s separate property. However, the common estate is entitled to monetary compensation.
Valuation of Compensation
The amount is determined by expert appraisal, considering the value of the building and the land.
Legal Certainty
By unifying jurisprudence, the STJ provides predictability and fairness for spouses, lawyers, and courts dealing with property division cases.
Conclusion
The ruling on construction on the spouse’s land under Portugal’s community of acquests regime represents a turning point in matrimonial property law.
By confirming that the house remains the separate property of the landowner spouse while ensuring fair compensation for the common estate, the Supreme Court harmonises principles of property law with marital fairness.
This decision provides much-needed clarity and a balanced approach to property division after divorce for legal professionals and couples alike. For full details, see Supreme Court of Justice Ruling No. 9/2025, published in the Diário da República.
This article is for informational purposes only and does not constitute legal advice. The content is based on publicly available information and jurisprudence at the time of writing. Suppose you are facing property division, divorce, or construction issues on your spouse’s land. In that case, you should consult a qualified lawyer in Portugal to obtain advice tailored to your situation.
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