BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
Ending a Marriage It is possible to seek the invalidation of a marriage on grounds of nullity, where statutory impediments exist (such as close kinship) or annulment, where there are defects in consent, such as duress, an essential mis ‑ take as to the person, or where one party was below the minimum legal age. Both remedies are subject to strict statutory limitation periods. Unlike divorce, they aim to obtain a declaration that such marriage should not have existed in law or that it was vitiated at the moment of its formation. Until the entry into force of Constitutional Amendment No 66/2010, judicial separation was required as a pre ‑ liminary step to divorce for couples who had not been living separately in fact for more than two years. Fol ‑ lowing a one-year period after the judicial separation decree, the parties could then obtain a divorce. This temporal requirement was abolished in 2010, and the Supreme Federal Court has since confirmed that judi ‑ cial separation is no longer a prerequisite for divorce and that the mechanism has been abolished under Brazilian law. 1.2 Choice of Jurisdiction in Divorce Proceedings Jurisdictional Grounds for Commencing Divorce Proceedings The general rule under the Brazilian Code of Civil Pro ‑ cedure is that divorce proceedings should be brought before the court of: • the domicile of the guardian of an incapacitated child; • the parties’ last shared domicile (if there is no inca ‑ pacitated child); or • the defendant’s domicile. There is, however, an important protective exception under the Maria da Penha Act (Law No 11,340/2006): in cases of domestic and family violence, the victim may elect to bring divorce proceedings before the court of their own domicile or place of residence, thereby facilitating access to justice. These rules on territorial jurisdiction, including the general provisions of the Code of Civil Procedure, apply equally to same-sex spouses and to partners
in a stable union. The special jurisdictional rule in domestic-violence cases also extends to victims in same-sex relationships, as recognised in settled case law of the superior courts. Domicile, Residence and Nationality in Divorces Domicile is the central connecting factor in Brazil for determining jurisdiction. It is defined as the place where an individual establishes residence with the intention of remaining on a permanent basis. Where the defendant is domiciled in Brazil, the Brazilian courts have jurisdiction to hear and determine divorce proceedings irrespective of the defendant’s national ‑ ity. Residence, by contrast, refers to mere physical habitation without the necessary intention of perma ‑ nence, and operates as a subsidiary connecting factor where domicile is unknown. Nationality is relevant primarily in the context of out-of- court divorce abroad, because only Brazilian nationals may obtain a notarial divorce directly before Brazilian consular authorities, which is treated as equivalent to an out-of-court notarial divorce executed before a notarial authority within Brazil. Contesting Jurisdiction The jurisdiction of the Brazilian courts to determine divorce proceedings may, as a general rule, be chal ‑ lenged where the connecting factor of domicile is absent. However, a special basis of jurisdiction arises where the claim is grounded on a fact that occurred, or an act that was conducted, in Brazil. In such circum ‑ stances, the Brazilian courts may assume jurisdiction even if both spouses are domiciled abroad. Accord ‑ ingly, Brazilian courts may grant a divorce between spouses domiciled outside Brazil where the marriage was celebrated in Brazil. Stay of Proceedings Proceedings issued in a foreign court do not imply lis pendens in Brazil and do not prevent the Brazilian courts from entertaining the same cause of action. Accordingly, an application to stay the Brazilian pro ‑ ceedings solely on the basis that proceedings are pending abroad is generally refused, since Brazil oper ‑ ates a system of concurrent international jurisdiction for divorce. This permits parallel proceedings to run in different countries without giving rise to an inter ‑
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