BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
upon by the couple, provided it does not violate mat ‑ ters of public policy. The STJ has consolidated the understanding that agreements are valid not only for money matters, but also for rules of co-habitation, functioning as a true “statute” for the couple. However, the courts have embraced discussions regarding the validity of agreements where there are allegations of forced consent or other forms of signing under duress. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Stable unions are defined as public, continuous, last ‑ ing unions with the aim of constituting a family. Due to a judgment handed down by the Federal Supreme Court in 2018, stable unions are treated as equivalent to marriage. Thus, the same property regime rules apply, including the partial community of property as the default regime. The existence of joint children and/or co-habitation will be considered as evidence of the establishment of a stable union, but neither automatically grants the union’s recognition. 2.7 Enforcement of Financial Orders Under Brazilian family law, the enforcement of finan ‑ cial obligations, such as the payment of spousal maintenance or the delivery of amounts related to the division of assets, is ensured by enforcement mecha ‑ nisms that vary according to the nature of the debt. Enforceability methods include imposition of fines, seizure of financial assets, payroll deductions and negative credit listing, although these are illustrative measures and the court may issue any other order it deems suitable to ensure compliance. In addition, spousal and child maintenance legislation is extremely strict in Brazil, representing the only remaining sce ‑ nario of civil imprisonment under Brazilian law. In matters of child support, Brazil is a signatory to the Hague Convention on Child Support, which allows for more efficient proceedings through the Ministry of Justice, acting as the central authority. This frame ‑ work enables direct enforcement and the application of coercive measures, such as the freezing of bank
accounts and, in certain circumstances, the civil imprisonment of the debtor within Brazilian territory. By contrast, foreign decisions concerning the division of property or financial compensation must undergo a recognition procedure before the STJ. This process validates the foreign judgment so that it may take effect in Brazil, without any re-examination of the merits. It is important to note that assets located in Brazil fall under the exclusive jurisdiction of Brazilian courts; as a result, the recognition of foreign judg ‑ ments dealing with the division of assets situated in Brazil is generally denied. 2.8 Media Access and Transparency in Financial Proceedings The Brazilian Code of Civil Procedure, in Article 189, II, guarantees by law the confidentiality of all proceed ‑ ings involving family matters, regardless of the parties’ request. Since cases involving family law are subject to judicial secrecy by statutory law, they cannot be disclosed by the press. 2.9 ADR in Financial Matters The Brazilian legal system offers flexibility for resolv ‑ ing financial disputes in family law, prioritising speed, confidentiality and the autonomy of the parties, as long as there are no minor children involved – in such cases, the judiciary holds exclusive jurisdiction over the matter, and the Public Prosecutor’s Office inter ‑ venes in order to assure the minors’ interests are being safeguarded. Mediation is the most widespread ADR method, with an impartial third-party facilitating dialogue so that the spouses themselves can find a solution for the divi ‑ sion of assets or spousal maintenance. In addition, collaborative practices propose an interdisciplinary approach where lawyers and financial experts work together with a formal commitment not to resort to the courts, focusing exclusively on building techni ‑ cally robust and customised agreements. If there are no civil status modifications or minors’ interests under discussion and the dispute is purely financial, arbitra ‑ tion also arises as an option, which may be provided for in advance in prenuptial agreements, although this option still sparks discussion in legal forums.
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