Brazil’s Series of Divorce Questions
Contributing Lawyer: Celia Caiuby
Contributors
- Celia Ciauby celiacaiuby@hotmail.com
A. General
What are the legislation governing divorce proceedings in Brazil?
Divorce was introduced in Brazil by Law 6515/1977. Divorce Proceedings are largely governed by the Civil Procedure Code in Brazil.
Divorce Provisions are also included in the Federal Constitution and the Civil Code.
B. Divorce Process in Brazil
Am I eligible to apply for a Divorce in Brazil?
Yes. As long as one is married, one will be able to apply for a divorce in Brazil.
What are the Grounds for Divorce in Brazil?
It is worth noting that after the Constitutional Amendment 66/2010, there is no longer a need to satisfy any legal requirement for a divorce.
One can divorce without the other spouse’s agreement. For out of court settlements, the most common grounds for divorce are: –
- Incompatibility between spouses;
- Marriage Crisis between spouses;
- Feelings have changed between spouses; or
- Presence of a 3rd party.
What is the Divorce Process in Brazil?
In Brazil, the Divorce Process includes dissolution of the marriage and the end of duty of mutual assistance.
C. Jurisdiction Requirements in Brazil
Do expats need to fulfil any requirements to file for a Divorce in Brazil?
If parties are Brazilian and married in Brazil, they can divorce in Brazil even if they live outside of the country.
If parties are foreigners and married in their own countries, they can only divorce in Brazil by registering their marriage in the Brazilian Civil Registry.
If parties are foreigners and married in Brazil, they can divorce in Brazil.
On the other hand, any marriage outside of Brazil will only have value in Brazil upon registration before the Brazilian competent authority.
As such, marriage registration is a prerequisite for divorce in Brazil.
D. Child Issues in Brazil
What is the overarching principle that guides the Court in making decisions in relation to care arrangements of children in Brazil?
The overarching principle guiding the Courts would be the best interests of the child or adolescent.
Is there a difference between custody, care and control and access in Brazil?
Yes. In Brazil, there are different types of legal responsibilities to take care of children.
Custody or guardianship is the most important because it includes family power exercisable by one or both parents.
Who does the child usually reside with post-divorce in Brazil? Is there a preference for a child to reside with the mother in Brazil?
The determination of a child’s residence post-divorce depends on the facts of the case. In the past, there would be a preference for a child to reside with the mother in Brazil.
Presently, it is not a given for a child to reside with the mother or for a mother to be granted guardianship in Brazil.
Are there any major child-issues that both father and mother have to discuss and come to an agreement post-divorce in Brazil? Or does the parent who resides with the child make all the decision in Brazil?
The Courts tend to award joint custody in Brazil. As such, both parents will have to decide on child issues together.
In the event sole custody is awarded to a parent, the custodian parent who resides with the child may singularly make decisions in relation to the child.
Who needs to contribute to child maintenance in Brazil? Is there an obligation on both parents in Brazil?
Generally, both parents have the obligation to contribute to child maintenance in Brazil. This obligation is subject to the child’s necessity and the parent’s ability. As such, there are instances whereby only a parent is financially responsible for child maintenance.
What are the factors the Court take into account when deciding the amount for child maintenance in Brazil?
The Court takes into account factors including but not limited to: –
- The child’s life standard during the marriage;
- The child’s needs including but not limited to education, health and leisure; and
- The ability of each parent to pay post-divorce.
E. Division of Matrimonial Assets in Brazil
What are considered as Matrimonial Assets in Brazil?
In Brazil, Matrimonial Assets includes but are not limited to: –
- Real estate;
- Movable property;
- Investments;
- Corporate shares;
- Bank account;
- Labour funds and;
- Assets with equity value.
What is the overarching principle that guides the Court in the Division of Matrimonial Assets in Brazil?
This will depend on the property regime applicable to parties. Generally, there are three (3) different regime types established at the time of marriage: –
- Full communion of property and assets
Parties will have the full benefits of each other’s property, including property or assets obtained through inheritance. - Partial communion of property and assets
Any property or asset acquired from the date of the marriage will belong to both spouses.
Any inheritance will not be shared. - Full separation of property and assets
Parties will have to co-sign property and assets at every purchase for it to belong to both spouses.
Inheritance will not be shared.
What are the factors the Court take into account in dividing matrimonial assets in Brazil?
The Court will consider which property regime is applicable to parties.
In the event there is no property regime in place, the court admits evidence regarding the acquisition of the property and who had made payment for the property to assist in order to decide whether the property will be included in the division of matrimonial assets.
F. Spousal Maintenance in Brazil
In what circumstances does the Court order a husband to pay maintenance to his wife/ ex-wife in Brazil?
A husband shall be ordered to pay maintenance to his wife/ ex-wife in the event, he is financially independent and his wife/ex-wife is dependent on him.
In what circumstances does the Court order a wife to pay maintenance to her husband/ex-husband in Brazil?
A wife shall be ordered to pay maintenance to her husband/ ex-husband in the event, she is financially independent and her husband/ex-husband is dependent on her.
What is the overarching principle that guides the Court for spousal maintenance in Brazil?
The Courts will consider the payee’s spouse necessity and the payer’s spouse ability in granting spousal maintenance.
What are the factors the Court take into account when deciding the amount for spousal maintenance in Brazil?
The Court will consider the payee’s spouse age and the possibility of the payee spouse entering the labour market. The Courts will also consider whether there are sufficient marital assets for maintenance and the length required for financial assistance.
How does the Court facilitate the payment of spousal maintenance in acrimonious cases in Brazil?
In Brazil, the court facilitates the payment of spousal maintenance in acrimonious cases through payroll discount.
For further detailed information on international divorce, please visit our dedicated web-page at www.expatdivorce.sg
