Questions and Answers regarding Brazilian International Family Law
- Can I get divorced in Brazil? What jurisdictional conditions do I need to satisfy?
The Brazilian courts are competent (along with foreign courts) to adjudicate actions in which the defendant is domiciled in Brazil (article 21, I of the Brazilian Civil Procedure Code), or when in Brazil the marriage was performed or registered, even if the parties are not domiciled in the country. On the other hand, Brazilian courts will have exclusive jurisdiction (ie, divorce abroad will have no effect in Brazil) when it is a divorce case where there is sharing of assets located in Brazil, regardless of the nationality and domicile of the parties. (article 23, III, of the Brazilian Civil Procedure Code).
In any of the possible cases, for divorce to occur in Brazil, the marriage must first be registered in the country.
If the divorce is carried out abroad (in cases of competing jurisdiction), it will only have effect in Brazil, after the foreign ruling has been ratified at the Brazilian Superior Court (STJ), or, if it is a pure divorce (when there is nothing else apart from the marriage dissolution), it may be registered directly in a notary’s office. Only then overseas divorce will have effect in Brazil. The same procedure applies to a foreign spouse who has been divorced from a Brazilian, abroad, and wants the divorce to have effect in Brazil.
Only after the homologation of the foreign ruling at the Brazilian Superior Court and the respective annotation of the divorce in a Brazilian notary, can a new marriage be registered in the Consular Office.
In order to apply for homologation at the Superior Court, the interested party must find a qualified lawyer in Brazil, and there are specific documents and formalities to do so. The physical presence of the parties in Brazil is not required
- What are the grounds for divorce in Brazil?
In order to be able to divorce in Brazil, there is no specific requirement to justify the end of the marriage bond. It is possible to divorce regardless of the situation between the spouses, simply by having irreconcilable differences.
Thus, in Brazil, no fault analysis is made of the spouses wishing to divorce, and no separation prior to the divorce is required.
- How are property and other capital assets shared? What factors will the Court take into account?
For the determination of the regime of assets in international marriages it applies the rules of Brazilian Private International Law, in article 7 of decree-law 4657/42. There,, one can find the connection elements related to marriage and what should be the criterion for the adoption of the property regime. Brazilian law, in this respect, enshrines the Principle of Domicile.
It is provided in article 7, §4º of the decree-law, that “the regime of property, legal or conventional, obeys the law of the country in which the parties have domicile, and, if this is different, that of the first conjugal domicile”.
If the couple has a marital domicile in Brazil, Brazilian law on the property regime shall apply. This law stipulates that the marriage partners may, before the marriage is registred, choose the property regime or make a prenuptial agreement, and if they do not choose, the regime applied will be the partial communion of assets (the goods acquired during mariage are equally divided after marriage, except for inheritances and a few other items). Separation of property in marriage is a mandatory regime in some specific circumstances. (Articles 1.639 to 1652 of the Brazilian Civil Code).
If the couple has marital domicilie elsewhere, the rules of that domicile shall apply, even if the divorce is ongoing in Brazilian jurisdiction.
- Do we have to go to Court to resolve financial matters or can we reach our own agreement?
Divorce and settlement of related financial matters can occur with one of the following procedures:
The procedure for divorce may be judicial, when there is litigation or when the couple has minor children. But even in the judiciary it is possible to make agreements and negotiate.
The procedure can also be administrative, which is the one performed at the Extrajudicial Notary, when there is consensus and no minor children. The parties may define all terms of the agreement in a joint document, including financial matters. This divorce continues to require mandatory legal counsel and representation and may be performed without the parties present at the Notary Office. As stated in item 1, foreign divorces are also ratifiable in Brazil, without questioning their merits.
- Will the Court uphold a pre-nuptial agreement?
The pre-nuptial agreement for the sharing of assets is authorized and regulated under Brazilian law. This agreement works as a contract signed before marriage, which contains provisions on the property regime adopted in the marriage of a couple, thus protecting the property of the couple.
For those over 70 years old, who want to get married, the mandatory regime is the legal separation of property. But separation of property is also possible for people under 70 years old. In this case, the separation of property regime is not mandatory, and must be signed through a pre-nuptial agreement.
There are regulations so that the agreement about asset can be made after marriage, changing the current property regime. But the alteration must be made by consensus and at a Court, in a procedure opened by both spouses.
The pre-nup agreement will only be annulled by the Brazilian courts, if it does not comply with the formal and legal requirements, which is why it is essential to seek a lawyer specialized in the field.
- How is maintenance dealt with? Will the Court order me to pay maintenance to my spouse and children? Is maintenance for my spouse dealt with separately to maintenance for the children?
Maintenance depends on each case. For child support, normally the value is set at 10 to 30% of the net income of the parent. But it all depends on three criteria that are asessed in and proved in documents: parent’s capacity, child’s needs, and proportionality, which are subjectively evaluated by a judge. There is no fixed table for determining child support as there are in some countries. Spousal support is, nowadays, not very common. If it is determined to pay support for a spouse, it will depend on his / her need (for example, he/she is unable to work). But this amount will be paid separately to the amount paid to the child. There may be transaction and agreement on this topic as well.
- What is the Court’s attitude towards child arrangements for children after separation? How will the Court determine who the children should live with and how much time they spend with the other parent? Will the Court in Brazil be able to make decisions in respect of my children?
Generally, according to the practice of the Brazilian courts, the most common is the determination of shared custody decisions, but everything depends on what is the best interest of the child. This is the principle that guides all cases of custody and visitation in Brazilian law. The courts will decide with whom the child will live based on the parent who best exercises parental power and on the child’s adaptation.
As for visitation, it all depends on the circumstances of the case. Generally in the case of foreign parents residing in diferente countries, judges determine hours of Skype sessions and periodic and regulated visits of the foreign parent in Brazil and for the child abroad. The Brazilian court will have jurisdiction over these matters as long as the minor lives in Brazil or there is consensus.
Sergio Botinha – International Family Lawyer in Brazil (www.lawyerinbrazil.com)
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