BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
Chieco Advogados Av. Nove de Julho, 4.939 1º andar, Cj.11 E Itaim Bibi São Paulo/SP 01407.100 Brazil Tel: +55 11 4550 3840 Email: administrativo@chieco.com.br Web: www.chieco.com.br
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce Brazilian law adopts a no-fault divorce regime. This means that the dissolution of marriage is a unilateral potestative right and requires solely the declared will of one or both spouses, with no requirement to dis ‑ close the specific reasons for the separation, prove fault, or comply with any waiting period. These principles apply in full and on an equal-rights basis to same-sex spouses. Divorce Proceedings Divorce in Brazil may be granted either at court or before a notary public. The out-of-court route is typically expeditious and may be adopted when the spouses agree as to the terms of the divorce. Legal representation is mandatory, and a single lawyer may act for both parties. However, any matters concern ‑ ing minor or legally incapacitated children – including custody and visitation arrangements and child sup ‑ port – must be previously determined by the court. The extrajudicial divorce is then formalised by a public deed and may be concluded within a short timeframe. A judicial divorce decree also tends to be obtained within a relatively short timeframe, since the court does not enquire into or require proof of the reasons for the breakdown of the marriage. In practice, if par ‑ ties are litigating, the court will generally wait for the defendant to be served and file their defence before
deciding about the divorce itself. There have also been recent decisions immediately decreeing the divorce even prior to service on the other spouse, due to its potestative nature. There is no requirement for any minimum period of separation (nor for proceedings to have been pending for any minimum duration) as a precondition for the divorce to be granted. Service of divorce proceedings Valid service of process is an essential requirement for procedural legal certainty and is ordinarily executed personally by a court bailiff ( oficial de justiça ). Where all reasonable steps to locate the other spouse have been exhausted, service may be executed by public notice. However, divorces limited to the dissolution of the marriage (excluding matters relating to children and the division of assets) have increasingly been granted without prior service. Religious Marriages A religious marriage, if recorded in the competent Civil Registry Office within the statutory 90-day registration period following the ceremony, may produce immedi ‑ ate civil effects with effect from the date of celebra ‑ tion. However, the religious dissolution of the marital bond (an ecclesiastical divorce) has no legal validity or effect under Brazilian civil law. For the marriage to be legally brought to an end, the parties must formally obtain a civil divorce, either through court proceedings or by an out-of-court notarial procedure.
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