BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
is allowed to sell immovable assets, unless there is express authorisation in the prenuptial agreement. Where the marriage is dissolved, the acquests must be partitioned. In the regime of final sharing of acquests, each spouse is responsible for any debts incurred, unless they were incurred for the benefit of the couple. If the parties are willing to choose a regime other than the default, they must sign a prenuptial agreement before a notary public. In this document, parties may combine different rules from each of the regimes. Recognition of Foreign Trusts There is no specific legislation in Brazil that encom ‑ passes trusts, and other similar fiduciary structures. However, the lack of regulation in Brazil does not pre ‑ vent the use of fiduciary structures in foreign jurisdic ‑ tions by Brazilian residents. There is a bill currently under discussion that aims to regulate fiduciary contracts, inspired by the Eng ‑ lish law on trusts. With the imminent regulation of the subject in Brazil, it is certain that access to this tool will be democratised, thereby promoting the use of local contracts that can be tailored to the reality of Brazilian families. Given the lack of a legal framework in Brazil, individu ‑ als and professionals engaged in trust arrangements should be mindful of the associated complexities and uncertainties before the Brazilian Court. Regarding tax implications, Law 14,754/2023 intro ‑ duced rules for revocable and irrevocable trusts involving Brazilian tax residents. Assets and rights held within a foreign trust are treated as belonging to the settlor until either the assets are distributed to beneficiaries or upon the settlor’s death. For irrevo ‑ cable trusts, ownership may be transferred earlier if the settlor irrevocably relinquishes their rights over the trust’s assets. 2.4 Spousal Maintenance Spousal maintenance is not automatic on divorce and is generally exceptional and temporary. It may be set through periodic payments limited to living costs but it may also encompass compensatory maintenance,
which is expenses the spouse would have to maintain the same lifestyle as during the marriage. It is also a key aspect of maintenance that the support received is not subject to compensation with other debts and payments. Restitution of maintenance pay ‑ ments is generally not allowed. Interim Maintenance Parties can apply for interim maintenance pending the outcome of a lawsuit, whether it is an independent process or requested within divorce proceedings, and this injunction is always subject to review. Duration and Amount of Maintenance The duration and amount of maintenance are deter ‑ mined through the application of statutory rules regarding the needs of the recipient, the financial position of the provider and the proportionality of the amount set. The duration may range from months to lifelong payments (although these are increasingly rare), and the amount may be a percentage of the provider’s income or a fixed amount. Some factors that are considered when determining the amount of fixed maintenance are the standard of living during the marriage; the age, health and gen ‑ der of the parties; and the capacity to re-enter the workforce, among others. Economic dependency and childcare responsibilities have also surfaced as impor ‑ tant factors in recent case law, with a view to providing a softer transition to post-married life. 2.5 Prenuptial and Postnuptial Agreements Under Brazilian law, prenuptial agreements are rec ‑ ognised by statute as the public deed through which parties determine their matrimonial regime. It is also an opportunity to customise the rules of the marriage, provided that the limits of human dignity and public order are respected. Brazilian law does not provide a framework for post ‑ nuptial agreements, but case law has admitted them as enforceable if signed with court authorisation. The Brazilian courts deal with these agreements based on private autonomy, which means that the judges and courts tend to respect what has been agreed
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