Recognition of Foreign Divorces
In order to the divorce, granted abroad, obtain validity in Brazil, it is necessary the validation of the foreign sentence in the STJ – Superior Tribunal de Justiça. Located in Brasília, it is necessary a process called, in Portuguese, “Homologação de Sentença Estrangeira”. In English that would be translated by “validation of foreign sentences”.
In a recent legal twist, though, the new Brazilian Civil Procedure Code prescribes that “a consensual divorce foreign sentence takes effects in Brazil, independently of validation by the Superior Tribunal de Justiça (STJ).”
Many doubts emerged with this new disposal that dismisses the validation in cases of consensual divorces. The Corregedoria do Conselho Nacional de Justiça (CNJ – Or National Internal Affairs of the Judiciary) thus regulated the direct registration of a foreign divorce sentence. This is prescribed by the new Civil Procedure Code with its Rule n. 53, from May 2016. This Regulation untangled the issue by standardizing the procedure of foreign consensual divorce registrations in all notary offices in Brazil.
About the Resolution
The first article of this Rule from the CNJ stipulates: “The direct registration of the foreign sentence of consensual divorce, pure or simple, as well as the non-judicial decisions of divorce, which has judicial nature under Brazilian law, must be done in the Civil Registry of Natural People from March 18, 2016. §3º. The registration of the foreign sentence of consensual divorce, which in addition to the dissolution of marriage, involves custody, child maintenance and/or property sharing – here nominated “qualified consensual divorce” – will depend on prior approval by the Superior Tribunal de Justiça”.
The Rule differentiates pure divorce against qualified divorce.
Consensual Pure Divorce: simple or pure consensual divorce consists exclusively in the marriage dissolution.
Qualified consensual divorce: it consists in that one which, beyond dissolving the marriage, also makes dispositions about children custody. Also children maintenance and/or property sharing.
According to the Rule’s text, the CNJ evaluates that only pure consensual divorce proceedings would dismiss the validation by STJ.
That is, in cases where the divorce is contentious or it was done in a consensual manner, but disposing about issues like children custody, children maintenance and property splitting, it continues to be necessary the validation by the STJ. All in the same manner that it was used to be.
Only consensual divorces that do not dispose about those issues can be registered directly in a notary’s office in Brazil. That is with no need of STJ validation.
It is worth highlighting that even on the cases when it is allowed to make direct registration of the foreign divorce in the notary office, it is important to consult a lawyer. It is important since there will be the necessity of some procedures that might be complex for the client. This may include the confirmation, to the notary, of the definitive nature of the sentence. This is necessary once many times this and other requirements are not expressed in the sentence.
If there is a change in the party’s name, for instance, this change must be proven. In addition, in many cases the foreign marriage is not registered at a Brazilian notary’s office, which makes necessary the registry of the marriage to occur prior to the dissolution. Furthermore, of course, there is the security that only a qualified lawyer can provide to a party living abroad. With the normal difficulties if having to resolve bureaucratic issues in Brazil.
Our Office has more than 15 years of experience supporting Brazilians that live abroad. We will be glad to receive your consulting.
Read more here: International Divorces
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